Age discrimination and recruitment: lessons from Thomas v Tindall Riley

The Employment Appeal Tribunal (the “EAT”) has recently dismissed an appeal relating to a claim of age discrimination. Interestingly, the claim focused on an employer’s recruitment process and hiring decision. Fortunately for employers, the EAT re-confirmed that incurring higher recruitment costs did not amount to less favourable treatment on grounds of age.

The case

The case concerned Ms Thomas who was offered permanent employment with Tindall Riley & Co Ltd (the “Employer”). The Employer offered Ms Thomas a salary of £100,000 and a sign-on bonus of £10,000.

This offer was declined due to Ms Thomas considering the salary package too low and unrepresentative of her potential contribution to the company. In response, Ms Thomas countered the offer by requesting a £15,000 sign-on bonus. This was rejected by the Employer.

Further to this exchange, the Employer continued its search for a candidate and eventually appointed Ms Sutherland to the role of Head of Talent Acquisition, the very position Ms Thomas had sought.

Following this appointment, Ms Thomas brought a series of claims against the Employer in the Employment Tribunal (the “ET”), including a claim of age discrimination. Central to Ms Thomas’s claim was the fact that Ms Sutherland was aged 10 years younger than Ms Thomas and, in the view of Ms Thomas, was consequently far less experienced.

Ms Thomas’s particular concern was that, although Ms Sutherland’s salary of £100,000 was lower because she did not receive a sign-on bonus, the overall cost to hire her was higher due to the £15,000 recruitment agency fee. Ms Thomas argued that, while the Employer was willing to spend £115,000 on Ms Sutherland, it had rejected her counteroffer, which would have resulted in the same total cost.

It followed that a question for the ET was whether the appointment of Ms Sutherland amounted to less favourable treatment on the grounds of age. Ultimately, the ET concluded that it did not. Importantly, Ms Sutherland was appointed on a lower salary than that offered to Ms Thomas, and this meant that, even if Ms Thomas had greater experience, the decision of the Employer did not result in Ms Thomas being treated less favourably than her comparator.

The appeal

Unhappy with the decision, Ms Thomas appealed the ET’s findings to the EAT. In doing so, Ms Thomas suggested that the ET had misunderstood her claim and had not sufficiently appreciated the fact that the Employer had incurred £15,000 in recruitment agency fees meaning that the overall hiring cost of Ms Sutherland was greater than the package offered to her.

Despite these arguments, the EAT dismissed the appeal. In their judgment, the EAT referred to section 13 of the Equality Act 2010 which reads that:

“(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

As a result, the EAT took the view, again, that Ms Thomas had not been subjected to less favourable treatment. In fact, the EAT added that it was instead her case that she should have been treated more favourably than her comparator which is not within the scope of section 13.

Implications for employers

Although this case clarifies that, when comparing the direct remuneration of candidates, an employer’s additional recruitment costs (such as agency fees) do not form part of the comparator’s pay package for the purposes of an age discrimination claim, employers should remain vigilant that recruitment decisions and processes can still give rise to discrimination complaints. Accordingly, it is important to carry out a fair hiring process that follows best practices. This will likely include:

• Training hiring managers to conduct an appropriate recruitment process
• Documenting the recruitment process thoroughly at every stage
• Ensuring recruitment decisions are based on objective factors, not age or other protected characteristics
• Reviewing counteroffers carefully and ensure decisions are properly justified
• Provide clear and consistent communication to candidates to ensure transparency during the process
• Regularly monitoring and updating recruitment procedures to stay up to date with best practices.

If you have any questions about how to carry out a fair and non-discriminatory recruitment process or if you need assistance in handling an employment claim, please do contact a member of our Employment team.