Mr M Taylor v AXA Insurance plc: 2202052/2021
JUDGMENT
[1]The Tribunal finds that the failure to offer the claimant an interview or the role of motor engineer amounted to less favourable treatment because the claimant was a genuine applicant and was not only applying so he could make a claim to the Employment Tribunal.[2]The Tribunal finds that the respondent did not treat the claimant less favourably than it treated others because he was over 60 years old. The Tribunal finds that Mr Hill did not know the claimant’s age when he rejected the claimant’s application. It was not a factor that influenced his decision not to short list the claimant.[3]Therefore, the claimant’s claim for direct age discrimination fails and is dismissed.REASONS
[1]The claimant presented a claim form for age discrimination on 4 May 2021. In his claim form he described his claim as indirect age discrimination, but the claim was clarified at a case management preliminary hearing (CMPH) before EJ Grewal on 15 November 2021 as a claim for direct age discrimination.[2]EJ Grewal’s case management order records that the claimant confirmed at the CMPH that he was only complaining of his rejection by the respondent on 4 February 2021 and that his complaint was that the respondent had rejected him because of his age. This was confirmed at the beginning of the final hearing.[3]When the claimant started his submissions on day 2 of the final hearing the claimant asked for clarification whether his claim was for indirect discrimination. The Tribunal clarified that as per EJ Grewal’s order his claim was a direct age discrimination claim only and not one of indirect discrimination.[4]The issues before the Tribunal are:1.1 Whether the failure to offer the Claimant amounted to “less favourable treatment” (the Respondent’s case is that it did not because the Claimant did not want to take up the role and was only applying so that he could make a claim to the Employment Tribunal);1.2 If it did, whether the Respondent treated him less favourably than it treated others because he was over 60 years old. Legal submissions[5]The respondent argues that the claimant was not a genuine applicant for the role, and alternatively, the claim must fail for the claimant’s inability to prove that he was rejected because of his age.[6]The respondent argues the claimant was fishing for a claim by making numerous applications. He has failed to discharge the burden that he was treated less favourably. The claimant needs to establish that he was a genuine applicant for the role in order to prove that he suffered a detriment.[7]Second, in any event, he was not treated less favourably because of his age. The respondent, by its Mr Hill, had two main reasons for rejecting his application, namely(1) suitability based on his experience (which is not synonymous with age) and(2) a lack of necessary qualification (the ATA VDA, although this reason was not communicated to the claimant at the time). Two additional considerations for Mr Hill were that the claimant’s circumstances suggested he may be applying as a ‘stop gap’ and that he lived in Leicester, some 100 miles from the main Bolton office.[8]The respondent also argues the claimant has not proved that he has suffered any injury to feeling as he has produced little or no evidence. On quantum they argue that the claimant should only be awarded, if successful, an award of £1500 based on one incident that falls in the lower Vento band.[9]The claimant was very unhappy at the way the respondent had argued the case. He felt he had undergone a complete character assassination being accused of fishing for claims. He felt he had been accused of falsely presenting his qualifications and his credibility and integrity had been questioned. He did want to be a motor engineer and his application to AXA was genuine.[10]The claimant argues the Respondent has failed to provide a justifiable reason for rejecting his employment application. He did have the correct qualification for the role as advertised. He did not accept that Mr Hill was unaware of his age when rejecting his application as his date of birth was at the top of his CV and Mr Hill had confirmed he had read his CV. If Mr Hill knew is age, then it was unconscious bias that he rejected his application. Mr Hill gave evidence that he recruited people around the age of 30 to 40 and he had three engineers reach what was previously considered normal retirement age, age 60 plus, in the last 12 months.[11]He believes that the respondent has a discriminatory recruitment policy in place, specifically disadvantaging applicants of his demographic (over 60). The claimant argues how can he actually be over qualified? He would suggest not as this would indicate that once a specific level had been attained no further progress could be achieved. He argues that ‘over qualified’ is just code for ‘more mature’.[12]The respondent only employs 3% of employees over the age of 60 globally compared the industry’s normal percentage of 10%.[13]He argues that he has found the treatment by the respondent as soul destroying and should be awarded the top end of the Vento bands. Evidence before the Tribunal[14]The Tribunal was presented with a joint bundle and a supplemental bundle from the claimant and had written witness statements from the claimant and from the respondent Mr B Hill, a Motor Engineering Manager and the respondent’s decision maker, Ms S Davies, a Talent Acquisition Business Partner and Ms S Guest, a resourcing consultant. The claimant and Mr Hill gave evidence before the Tribunal. Ms Guest is on maternity leave and was not able to attend the Tribunal hearing and Ms Davies was unwell so could not attend. The respondent’s counsel prepared a skeleton argument and a supplemental skeleton argument. The Tribunal was referred to the cases of Keane v Investigo & others UKEAT/0389/09/SM (Keane) and Berry v Recruitment Revolution & others UKEAT/0190/1/LA (Berry).[15]Both Mr Taylor and Mr Hill came across as honest, consistent and reliable witnesses.[16]Oral submissions were made by both parties. The claimant provided to the respondent a copy of his contract of employment with Solus (London) LTD the night before the hearing and his P60. The claimant informed the Tribunal during his evidence that he had recorded on his voice his telephone conversations with Ms Davies and Ms Guest. This was the first time the respondent was aware of this and there were no transcripts. The Tribunal decided it was not necessary to hear the recordings.The law
[17]Section 39 of the Equality Act 2020 (EqA) provides: “Employees and applicants (1) An employer (A) must not discriminate against a person (B) – (a) in the arrangements A makes for deciding to whom to offer employment;”[18]Age is a protected characteristic.Findings of fact
[19]The claimant was born on first January 1959. He has had extensive experience within the insurance/motor claims/accident repair sector. He is highly qualified in these fields including being a member of the Institute of Automotive Engineer Assessors (IAEA). His CV (p89) sets out his professional experience which includes recently being a self-employed home based desktop engineer for Quantum Technical and a general manager for Tec reports from May 2015 until he was made redundant in March 2018. In this role he oversaw a team of 24 desktop and physical engineers and a team of 10 CSA’s and 7 loss negotiators. He had been a proprietor of an accident repair centre from 2001 to 2011.[20]He is elected to the education committee of the IAEA and voluntarily gives certifications on vehicle damage assessors positions and technical training for qualified engineers.[21]At the age of 63 he does not want the rigours and stress of a senior managerial role but a job he enjoys and excels at.[22]The claimant is financially secure. He is passionate about the motor engineering industry and specifically wanted to work for insurers.[23]The claimant has been employed as a Motor Engineer with Solus (London) LTD, which is part of the Aviva Group, since 1 March 2022. He was told on Friday he had passed his probationary period. The claimant mentors a number of his peers in addition to his current role. Job application[24]Around November 2020 Ms Davies, in her role as Resourcing Team Leader, drafted a job advertisement and job description for a motor engineer and said in her witness statement that Mr Hill had approved it. Mr Hill denied that he approved it as it was an old job description.[25]The full job description for the role can be seen at pages 54 – 57. As can be seen from the job description (at page 55) it’s a requirement of the role that the successful candidate has already attained or is working towards attaining within 1 year the Automotive Technician Accreditation (ATA) for Vehicle Damage Assessment (VDA) external qualification.[26]Mr Hill confirmed to the Tribunal that the job description was wrong in a number of aspects and should have been changed before being sent out.[27]The claimant applied for the role of motor engineer (200009PX) on 27 November 2020 with AXA Insurance. We accept his evidence that the application form automatically inputted information from his CV. His date of birth was included in his CV. Mr Hill was the hiring manager, Ms Davies was the Resource Team Leader in the Resourcing Team and was the recruiter.[28]The Motor Engineer role essentially involves using digital images to control accident damage spend in relation to the repair or total loss of policy holder vehicles. It also involves ensuring repair methods are authorised in line with manufacturer methods with all safety guidelines adhered to and providing claims with a technical resource to support the settlement of Accident Damage (AD) claims.[29]The claimant has been employed in the motor vehicle accident repair sector for over 40 years and is fully qualified and experienced in all the related disciplines within this sector and is 1 of only 473 Motor Engineers in the entire UK to have passed the relevant exams and achieved the qualification standard as a ‘Member of the Institute of Automotive Engineer Assessors’ (M.Inst.A.E.A.).[30]To compliment his M.Inst.A.E.A accreditation he has achieved numerous related exam based qualifications amongst which are; I.A.E.A - VDA which is the industry standard Vehicle Damage Assessor accreditation, further research indicates that of the 473 IAEA Members only 16% have also achieved the I.A.E.A-VDA accreditation initially placing him in an available talent pool of 76 individuals in the UK, further accolades achieved are; MFIEA, which is Member of the Federation of International Experts on Automobiles, AMIMI, which is Associate Member of the Institute of the Motor Industry, which collectively demonstrate that he is an expert in this field, with a unique full spectrum of both qualifications and experience in this field, all of which were stated on his CV.[31]An initial sift of applicants for the role of Motor Engineer was carried out by Ms Davies and she passed a shortlist of applications, including the claimant’s, to Mr Hill and the claimant was included in the sifted applications passed to Mr Hill.[32]Mr Hill screened the applications and notified the Resourcing team of the individuals who he wished to take through to the next round of the recruitment process. He chose to interview 3 candidates, and the remaining applicants, including the claimant, were notified that they had been unsuccessful. Mr Hill’s considerations Qualification[33]Mr Hill noted that the Claimant had listed on his CV that he obtained the IMI VDA (hence ATA VDA) qualification in 2017 (page 89). This lasts for 3 years so would have expired in November -5-2020. Also, in his application form that accompanied his CV, the Claimant listed a certification being: ‘ATA VDA’, stating that this expired in ‘Nov. 2020’ (page 73). His reference to the IMI VDA on page 89 and the ATA VDA on page 73 are to the same certification – they have the same reference number.[34]All Mr Hill’s Motor Engineers have the ATA VDA accreditation. They have either (and ideally) been recruited already holding this or join the Respondent with a view to quickly obtaining it. Some also have an IAEA (Institute of Automotive Engineer Assessors) qualification - the Respondent doesn’t require that qualification, it’s a personal choice for individuals to obtain that or not. The IAEA is a good qualification, however previously when individuals have joined as Motor Engineers, if they just had an IAEA qualification, they would still put them through the ATA VDA accreditation too.[35]On reviewing the Claimant’s application, Mr Hill found the claimant’s list of qualifications as impressive, however he didn’t see a current ATA VDA certification on his CV. In fact the claimant’s IAEA qualifications meant that he had more than the necessary qualifications required for the role but the Tribunal accepts Mr Hill’s evidence that he was not aware of this at the time and was merely looking for the specific ATA VDA qualification. Mr Hill also told the Tribunal he didn’t understand all the complexities of the different qualifications. Managerial and stop gap[36]Mr Hill could also see that the Claimant’s CV was heavily weighted towards having management experience. He considered that the Claimant would be more suited to a Senior Engineer or Team Leader role, given that a desk-based role would not be the best use of his experience. The role he was recruiting for was technical and required experience and knowledge and was usually a career path for someone who has had years of experience in a garage repairing vehicles or has been a mechanic and then looks to work in an insurance company. It is not a managerial role.[37]He was also concerned the Claimant was applying for a ‘stop gap’ position rather than a longer-term position, given that the Claimant had previously been made redundant (as he stated on his CV, page 90) and was self-employed at the time of applying. This meant that Mr Hill had concerns that the respondent would train the Claimant as needed into the role, and that he’d leave if a more senior role didn’t come up within the Respondent soon enough.[38]Mr Hill was specifically asked whether he thought the claimant maybe potentially difficult to manage as he had previously held senior managerial roles in the past and may have a view on how things should be done which may be in conflict with how Mr Hill managed things, but Mr Hill confirmed this was not a consideration of his. He just felt that with the amount of experience the claimant had, the role of Motor engineer would not be suitable for him. location[39]Another influencing factor for Mr Hill in not shortlisting the claimant was that he could see from his CV and application form that the Claimant was located in Leicester, so whilst in the North, this was still a considerable distance from the main office in the North: Bolton (over 100 miles).[40]Mr Hill spent no more than 10 minutes looking at each application/CV. He had a ‘yes’ pile and a ‘no’ pile after this initial screening: the ‘yes’ pile consisting of 3 candidates, who were all relatively local to the Bolton or Haverhill offices. The respondent has had to be flexible in the past due to only receiving a few applications from suitable applicants which was why they widen the pool in the job advert. On this occasion there were suitable candidates within the preferred catchment areas of Bolton and Haverhill. Mr Hill wanted someone who could go into the Haverhill office as he only had 3 engineers in that office. Although some engineers do work wholly remotely Mr Hill wanted to have someone who was able to travel into the office. He believed after covid engineers would be required to go into the office daily. In practice the policy is now hybrid working 3 days a week in the office.[41]The job description did not make it clear that the respondent was looking specifically for someone near the Bolton or Haverhill office. The claimant lived within 20 miles of Birmingham and therefore thought he fully fitted all the job requirements. DOB[42]The application form did not request a date of birth (DOB) (it just gave the option to add an age range, but this was not mandatory and was not visible to Mr Hill as the hiring manager). The Claimant chose to add his date of birth to his CV.[43]The Tribunal accepts the evidence of Mr Hill that he did not look at the claimant’s date of birth and was unaware of his age when considering his application form. The Tribunal accepts that consciously age was not a consideration in his decision to reject the claimant’s application. The fact that the claimant’s DOB was under his address on his CV does not mean he must have seen it. Mr Hill was concentrating on looking for where the claimant lived which was also at the top of his application form. Retirement age[44]The Tribunal accepts Mr Hill’s evidence that he thought at the time he made the decision about the claimant that the normal retirement age was 65. He was aware of three engineers who had reached the previous retirement age of 60 in the last 12 months. This is not the same as saying the normal retirement age was 60. Feedback[45]The remaining applicants, including the claimant, were notified that they had been unsuccessful. Ms Guest sent the unsuccessful candidates emails using their standard rejection form email. A copy of this email is at page 101 of the bundle. As the lead recruiter for this role, Ms Davies’ name was on the email which stated: “Hi Mike Thank you for applying for the position of Motor Engineer We’ve completed our initial review and I’m sorry to say we won’t be taking your application any further. We’re happy to hold your details on our database and we’d encourage you to create a job alert, that way we can let you know about other jobs which match what you’re looking for. It’s really easy to set up a job alert, just go to your candidate profile to view or modify your account preferences. Thank you for your interest in AXA and we wish you every success in finding your perfect job. Kind Regards AXA Recruitment Team.”[46]The claimant knew this was an automated reply and did not take any comfort from the fact it encouraged him to apply again and set up alerts. He already had an alert system set up through the recruitment website Indeed.[47]The claimant contacted AXA 8/02/2021 (p102) via email requesting feedback on the rejection of his application as this was not the first time he had been rejected by the respondent, his previous applications for the same role ‘Motor Engineer’, were (190006E) and (190009VO) 19/08/2019 and 14/10/2019 respectively.[48]On 8 February 2021 Ms Davies received an email from the claimant (p103) asking who had reviewed his application and why it had been rejected. The claimant chased again on 10 February 2021 so Ms Davies confirmed that Ms Guest would be copied in and they would seek feedback from the hiring manager.[49]On 10 February 2021 Mr Hill emailed Ms Davies with his reasons for rejecting the claimant’s application: “Hi Sophie, There were 2 main reasons for my decision not to interview. 1. Mike’s CV was heavily weighted towards his experience as a Team Manager who has previously managed a team of 21 engineers. He also has a lot of experience in process management and related engineering projects. I felt he would be more suited to a Senior Engineer / Team Leader role, and that a desk based image engineers role wouldn’t be the best use of his past experience. 2. Mike’s qualifications are impressive, however I was looking for engineers with a current ATA VDA Certification. It’s a pre requisite of the role in AXA that all engineers are ATA qualified and I didn’t see this on the CV. We do put people through the qualification but the Thatcham Training Facility is currently closed due to the pandemic, so I don’t have this option. The candidates I interviewed all hold a current certification which means their claims authority levels won’t be restricted. Thanks”[50]Mr Hill did not mention in his feedback a significant factor in rejecting the Claimant was his location. He didn’t feed this back at the time to Ms Guest because he felt that the feedback provided was sufficient and so didn’t feel that the location was necessary to mention. The Tribunal finds this was unfortunate because someone’s location can be a key factor and it would have been better if the claimant was told all the reasons considered by Mr Hill at the time.[51]Mr Hill also did not mention that another reason for his rejection was his concern that if given the role, the Claimant would use it as a ‘stop gap’ only until a more senior role came along. He didn’t feed this back at the time because he didn’t feel this was content for feeding back. It was purely a personal consideration.[52]After receiving feedback from Mr Hill according to Ms Guest and Ms Davies witness statements Ms Guest discussed it with Ms Davies and they agreed they would focus on the fact the claimant was more suited to a senior role to maintain a positive relationship with him as they wanted him to be open to consider a role in AXA in the future. Ms Guest then drafted an email (p110). ‘Good Morning Mike, Thankyou for your email, many apologies for our delayed response. From reviewing your application it is evident you have a substantial amount of experience, this would be best suited for a more senior role within the department and not as a desk based image engineer. We had many applications from candidates more aligned to the operations of the role. We would like to keep you in mind for any team management or senior engineer roles that may come available in the near future. Many thanks for your interest in AXA.’[53]The claimant expressed his confusion about Ms. Guest’s response in an email on 12 February (p109): ‘Morning Sophie Many thanks for your response, although I am a little confused, are you suggesting I am over qualified for the desk based engineer role? as per my CV this is a role I have been successfully carrying out for almost 3 years which demonstrates my longevity in the role, and satisfaction with this position, and in my opinion amply demonstrates my alignment to the operations of this role, perhaps you could expand on the basis for my rejections as unfortunately this is not an isolated rejection, this is in fact the third rejection for the same role, in a 2 year period; 190006E3 - 190009VO being the references for my previous applications (both in 2019) In relation to my applications, I meet the minimum criteria with both qualifications and experience in this role and on that basis would have expected to progress to at least to the interview stage, yet I have received what appears to be an identical, generic rejection email on each occasion, which when we consider the limited 'qualified' talent pool for what is a highly specialist technical role is somewhat surprising, there are less than 1000 qualified individuals who meet the minimum criteria in the UK, and when my additional qualifications and experience is factored in I sit in a group of less than 72 individuals in the UK, which from my perspective indicates that I would bring additional value to the business had my application been successful, and as advised I am not seeking a senior role, I am seeking a desk top engineering role direct with an Insurer, so unsure how you can suggest which role you believe I would be better suited to as the basis for my rejection? I await your response’[54]Ms Guest (Resourcing Co-ordinator) had a call with the claimant on the 17 February and said that; ‘From reviewing your application it is evident you have a substantial amount of experience; this would be best suited for a more senior role within the department and not as a desk-based image engineer.’[55]Ms Guest in her witness statement says she did not mention anything about the successful candidates having less experience than the Claimant because at the time there were no successful candidates. However, It is not clear whether at this time there was no successful candidate as the application on line system suggests Ms Guest did report back there were other successful candidates ‘more qualified’ than the claimant. In any event the Tribunal accepts the claimant’s recall of the conversation that Ms Guest did tell him a less experienced candidate had been selected or may have indicated had been shortlisted.[56]Ms Guest said in her statement she did not mention the feedback from Mr Hill regarding the Claimant not having a current ATA VDA Certification, as she was just reiterating the points from the email in front of her.[57]The claimant argues Ms Guest’s feedback would suggest that the hiring managers perspective was that he was overqualified for the motor engineer role advertised. However he argues that his qualifications, and experience are aligned to the requirements of the role, as advertised by the Respondent, and his CV clearly demonstrates that he had been carrying out this exact role advertised successfully for almost 3 years, and that he had been employed in that role previously. He was not applying for a more senior role but for the same role he had been carrying out for a significant period, so he disputes that he is over qualified, and that; ‘being over qualified’ is a valid basis for his rejection, and believes the reason provided by the Respondent is false and unwarranted.[58]The claimant had indicated to Ms Guest that he was not satisfied with the feedback she had given him, so she reported this back to Ms Davies. Ms Davies called the Claimant, as agreed, on 25 February 2021. During their call she repeated the rationale which had been given in the email. She offered to give him some general feedback on his CV as she thought he may find this useful but he said ‘this was not the purpose of the call’.[59]The Tribunal accepts the claimant’s evidence that during this subsequent call with Ms Davies (Resourcing Team Leader) she advised that it in recruitment it’s not uncommon to be rejected for being over qualified. Successful candidate and comparator C[60]Of the three candidates shortlisted by Mr Hill candidate A and B were local to the Haverhill office and had the ATA VDA qualification. C was a fall back if the other two were not suitable. The role was offered to A who did not take it and then offered it to B who did take up the role.[61]C obtained the ATA VDA in 2009 and had passed the IAEA VDA in 2019, a certification which lasts 5 years. Which Mr Hill thought was a practical exam similar to the ATA VDA. C was also in the catchment area for Bolton- approximately 20 miles away which Mr Hill thought was commutable.[62]The claimant in fact had also the IAEA VDA but Mr Hill had not appreciated this when looking at his application and CV. Other ET claims[63]The claimant had made a complaint of unfair dismissal and whistleblowing against Tec Reports following his redundancy. The Tribunal has not seen a copy of the Tribunal’s decision in the case but was informed he was successful in his unfair dismissal claim but not in his whistleblowing claim. This was, therefore, a genuine claim.[64]The claimant also presented two claims against Allianz Management Services Limited in 2021. One of the claims was dismissed and the second was dismissed on withdrawal by the claimant. The Tribunal has not seen those claim forms but they were claims for age discrimination relating to job applications the claimant had made. The Tribunal does not have enough information to make any finding regarding these claims.[65]The Tribunal finds that these applications to the ET do not demonstrate that the claimant is a serial litigant. Applying the authority of Keane, the claimant was a genuine applicant. The claimant has given an adequate explanation why he applied for the role of motor engineer and has in fact taken up a similar role. The claimant had explained why he did not want to apply for more senior roles. The claimant confirmed he did not need financially to work. The Tribunal accepts the claimant’s evidence.[66]Application for role in 2021 – the claimant applied for another role at AXA in October 2021 for a senior motor engineer. An internal candidate was offered the role so there was no external recruitment. This is confirmed by Ms Guest and Ms Davies and Mr Hill in their witness statements. Applying the law to the facts[67]The Tribunal accepts that the claimant applied for the AXA motor engineer role because he genuinely wanted the role. He is passionate about the industry he has worked in for over 45 years and did not want a senior role. He believes he can bring more benefit to the industry in a non-managerial role. The fact that the claimant has now taken up a motor engineer role with Aviva/ Solus demonstrates that the claimant was a genuine applicant for the role of motor engineer at AXA and was not going on a fishing expedition.[68]The Tribunal finds that the failure to offer the claimant an interview or the role of motor engineer amounted to less favourable treatment because the claimant was a genuine applicant and was not only applying so he could make a claim to the ET.[69]The Tribunal finds that the respondent did not treat the claimant less favourably than it treated others because he was over 60 years old. The Tribunal finds that Mr Hill did not know the claimant’s age when he rejected the claimant’s application. It was not a factor that influenced his decision not to short list the claimant. The reasons why the claimant was not shortlisted were: 1. That Mr Hill wrongly concluded that the claimant did not have a current ATA VDA certification or the equivalent. 2. The claimant was over qualified in the sense that his cv was heavily weighted towards having management experience and therefore Mr Hill thought that he would be more suited to a managerial role. 3. The claimant did not live within commutable distance to the Bolton or Haverhill offices. 4. He was also concerned that the claimant was applying for a stop gap position rather than a long term position.[70]The Tribunal finds that these are genuine reasons that are not because of the claimant’s age.[71]The Tribunal is critical of the fact that the respondent had not updated the application and job description and the job advert did not properly reflect the role. There was a conflict between the evidence of Mr Hill and Ms Davies regarding the job description.[72]The claimant should have been told, when he first asked for feedback, of all four reasons for Mr Hill’s decision to not short list him. It is understandable why he was suspicious when he had the necessary qualifications, he believed he lived close to one of the offices and in any event it was described as a desk top job and then he was told different reasons for why he had not been selected over a period of time.[73]It is understandable the claimant felt he had gone through a complete character assignation but the respondent is intitled to raise an arguable defence. Prior to the hearing the claimant had not provided all his reasons for wanting the motor engineer role. However the Tribunal has found there was no substance to their argument that the claimant was a serial litigant on a fishing exercise. He was a genuine applicant.[74]The Tribunal does not find there was any unconscious bias. There was no evidence of that on the part of Mr Hill. The Tribunal has accepted the reasons given by him for rejecting the claimant.[75]This is not an indirect age discrimination claim but it is always useful for the respondent to be reminded of the statistics and to review their recruitment policies and the number employed over the age of 60. EJ Isaacson