A decision has been made by a Manchester Employment Tribunal that to deny an experienced solicitor a job because he was considered too expensive, amounted to age discrimination.
Mr Raymond Levy was 57 years old and had been a practising solicitor since 1985 - specialising in commercial property law - when, on 5th March 2018 he answered an advert placed by McHale Legal Limited for a commercial property role requiring a solicitor with at least five years’ post-qualification experience (PQE).
Mr Levy - who had just been made redundant from his previous job - was asked by the senior solicitor specialising in commercial property law at McHale Legal, Ms Maria Udalova-Surkova, to send his CV and an interview was arranged for 7th March 2018.
At the interview, Ms Udalova-Surkova told Mr Levy that the role was required to be filled fairly urgently as a senior associate was leaving the firm and work was ‘piling up’ as new instructions came in.
Mr Levy was asked what salary he was looking for and due to the role being based in Manchester - and being aware that the salary would be less than the £60,000 he would expect to be paid in London - he suggested that he could work for £50,000 for the first three months. He also offered to work on a self-employed consultancy basis.
Ms Udalova-Surkova then suggested a start date of the following Monday 12th March - but told Mr Levy that the decision was dependent on the result of a meeting between the heads of departments.
The following day - 8th March - Ms Udalova-Surkova had a meeting with the other department heads to discuss the role. The notes from this meeting implied that Mr Levy was asking for a salary of £50,000-£60,000. This was an overstatement of what he had actually said he was looking for - and resulted in the suggestion that Mr Levy was ‘expensive’ and ‘doesn’t cover all our needs’.
On 9th March, Ms Udalova-Surkova emailed Andrew McHale - Senior Associate - saying, “Just to confirm, we are not interested in Raymond Levy, right?”. The tribunal heard that Mr McHale’s reply was, “Yep.”
On 12th March, Mr Levy received an email which stated that his application had not been successful saying, “I regret to inform you that at this stage we would not require your services as we have decided to go for a 3-5 PQE solicitor to train to our specific requirements.”
The Tribunal felt McHale Limited - despite its ‘clumsily-worded’ commitment in the handbook to ‘actively support … discrimination legislation’ - had little understanding and awareness of discrimination legislation. The employment judge Sharon Lanridge said:
“The lack of formal training in diversity and equality issues was apparent from the respondent’s complacency, and its aggressive defence of this claim was wholly at odds with its self-imposed commitment in the handbook to take such complaints seriously. The continued threats to report the claimant to the SRA were revealing of an employer which is impervious to the possibility that it may have discriminated, even without appreciating that it had done so.
We did not consider that the respondent’s decision was a proportionate means of achieving any legitimate aim, not least because it was clear from the context that the claimant was flexible about salary and the duration of the job, offering also to work on a self-employed basis, yet he was not even invited to negotiate. While we may accept that it is legitimate to appoint a solicitor whose experience and salary expectations match the commercial needs of the firm… the refusal to offer the claimant the job in this case was quite disproportionate. Rather than keep an open mind and negotiate terms with the claimant, the respondent instead deprived him of an opportunity to obtain work at a time when he was unemployed and receptive to discussing the salary level.”
The Tribunal ruled that ‘expensive’ was in fact ‘synonymous with his being an experienced and older solicitor’, and that the firm changed the job requirements to suit a more junior solicitor after it had deemed Mr Levy unsuitable.
McHale Legal Limited is to appeal.
Kate Palmer - Associate Director of advisory at Peninsula - commented that this case showed how the particular wording of job advertisements may place individuals of a certain age at a disadvantage - resulting in employers falling foul of equality laws. She stated:
“As seen here, asking for someone with three-to-five years’ PQE is highly likely to only apply to younger applicants, meaning older candidates would automatically miss out on this opportunity because of their age despite meeting the requirements of the role. The fact that the employers in this case could not justify this requirement, providing contradictory explanations concerning the cost of the claimant despite his being willing to negotiate a lower salary with them, was one of the key reasons his claim succeeded.”
