Ferguson v Anglia Water Services Ltd  

An employment tribunal held that age was not a factor in an internal selection process as the employer had been able to amply demonstrate an unbiased, consistent application of appropriate and thorough selection procedures so that the most suitable person was selected for the job.   

Mrs Ferguson, aged 52, applied for the post of senior data management scientist to work as part of the drinking water standards team. She was one of four candidates short-listed for interview, two of whom were aged 28 and the other was 26. She did not get the job. The post was offered to the highest scoring candidate, who was 28. The tribunal scrutinised the selection procedure carefully. It found as follows: 

• At the pre-interview test, Mrs Ferguson gave two incorrect answers , whereas the successful candidate answered all questions in accordance with the suggested answers prepared by the employer.      
• Each interview was scheduled to last for an hour and the two interviewers worked from a set of pre-prepared questions that covered the following areas: general; regulatory monitoring; the job role; statistical or IT knowledge; personal skills, together with other questions addressing suitability for the role, team working and reasons for applying for the job.  
• The interviewers had allowed themselves half an hour at the end of each interview to discuss the marks. They divided the score sheets into three headings: qualifications; skills and experience; and competencies.
• Mrs Ferguson scored 26 under qualifications and 107.5 under skills and experience; the successful candidate scored 30 and 95 respectively. 
• Six competencies were assessed and, although Mrs Ferguson scored higher than the successful candidate for applying technical/professional expertise, her scores on the remaining five were lower, resulting in a mark of 57.5 against his mark of 70. 
• In total, Mrs Ferguson scored 191 and the successful candidate 195.The responses from the employer’s HR department and an external consultancy to the psychological profiling tests did not disclose any relevant differences between Mrs Ferguson and the successful candidate.
• Both received “good feedback from the team” following a 15-minute visit to the drinking water standards team after their interviews. 

Mrs Ferguson claimed age discrimination. Her primary case was based on her dissatisfaction with the marks awarded to her under the competencies heading, but the tribunal rejected her contention that an adverse inference of age discrimination should be drawn from the interviewers’ notes against each assessment factor, as they were not “detailed” enough. 

Overall, the tribunal was extremely impressed by the conscientious way in which the interviewers had approached their task , faced with four very strong candidates. It was satisfied that the most suitable candidate had been appointed irrespective of age.  

The tribunal held that Mrs Ferguson had not established sufficient facts or raised inferences that would pass the burden of proof to the respondent. Even had she done so, the tribunal stated that it would have been satisfied from the selection process that without doubt the best candidate, regardless of age, had been selected. 

The learning point from this case is that employers who adopt objective selection criteria, who treat candidates consistently throughout the selection process and who can point to well documented, objective reasons for making decisions against each criteria, free from bias, will be well placed to resist any discrimination claim.   Case: [2007] ET/1500997/07