Out-Law News

Recruiting ‘best fit’ candidates is ‘asking for trouble’

Kate Dodd tells HRNews about the case of Clements v  Guy’s and St Thomas’ NHS Trust

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    When you're recruiting, do you try to choose people who'll 'fit in' to your business? If you do then you should look again at your recruitment policy. A very good illustration of the inherent problem with that approach is a case handed down by the London South Employment Tribunal called Clements v Guy’s and St Thomas’ NHS Foundation Trust which has been highlighted, with good reason, by People Management. The tribunal ruled the Trust hadn't realised the dangers of that approach and were guilty of unconscious bias in rejecting claimant Mr Clements, a middle-aged father who was 'very different' to the previous post-holder and may not 'fit in'. That view amounted to both age and sex discrimination. The facts serve as a useful lesson in what can go wrong. 

    Clements applied for the band 7 project manager role at the Trust. He was shortlisted for an interview by a panel which included his would-be manager Dr Charlotte Lee who was new to interviewing and hadn't received interview training. After all the interviews Clements was the highest-ranking candidate scoring 81.5 out of a possible 105. A younger female candidate was close behind him, scoring 80. Clements was then given the opportunity to meet the team over lunch, although he wasn't told that was part of the interview process which might help explain why he didn't stay long and that didn't go down well. The tribunal found that the comments later submitted by the wider team were included in the candidate score sheets and 'played an important role' in the selection. Those comments questioned whether he was too experienced, questioned how Lee would manage him (he was a lot older than her), and raised concerns about the fact he was “nothing like” the previous post holder, a female in her twenties. The tribunal heard how the panel then went on to discuss which of the two top scoring candidates would be the 'best fit'. The Trust tried to argue this was just a process of “moderation” but the tribunal said there was 'little that was scientific about the process', adding that the panel didn't go back to the scores and discuss whether they needed adjusting. Based on the evidence, in the end, the tribunal was satisfied that the wider team did have a significant say in who was ultimately selected, an approach that amounted to a flawed process which was discriminatory. 

    So what led the Trust to take that approach? The judgement helps with that – it says it was the result of unconscious bias which was born out of a lack of training. Someone who knows a lot about both of those things is Kate Dodd, formerly of diversity consultancy Brook Graham and now with Pinsent Masons. I spoke to Kate about the case and the numerous mistakes made by the Trust. She joined me by video-link from Manchester:
    Kate Dodd: “Yes so it's a really interesting case, Joe, and actually the idea of 'recruiting for fit', which is essentially what they were found to have done here, has long been fraught with danger. Lots of the work I've done for both Brook Graham and Pinsent Masons has been about helping people to understand about something called 'affinity bias' and this is obviously the idea that people tend to favour those who are similar to them, who've got similar interests, similar beliefs, etcetera, and affinity bias has always been something that we've told people that they need to watch out for. It's really the idea that you will tend to recruit people who are similar to you, people recruiting in their own image has been really long understood actually, people talking about the 'old boys network' and that really was just a very well established example of affinity bias where it might be somebody who shared the same interests, they might have gone to the same school, support the same football team, or whatever else it may be, that really kind of creates this affinity within a group. Of course when I'm working with clients on this we quite often do a little bit of a light hearted exercise, although one with a real meaning behind it, which is where we say to people, look, are there any 'mini-mes' in your business, have you got leaders who've got people who are really similar to them, around them, because again, that's an example of affinity bias at play. Now, going back to your question, Joe, what mistakes they made in this case. Now I would very much say that one of the key mistakes that they made was the fact that there was no interview training, so the people who were doing that interview process, it sounded like it was a fairly decent interview process, there was scoring evolved, it sounded like there was a great deal of objectivity and, in fact, Mr. Clements came out top of everybody in this process, and he was the person who was selected at that stage going into a second moderation stage and he was the person who was seen as being the best possible candidate for the job. They then went into a moderation process which became a bit more of a group decision, it became much more influenced by the group of people he would be working with and I think, really, that's probably where the big mistakes started to happen in that those people were all very similar to each other, they were all of a certain age, they were predominantly female, and it was decided at that stage that what was more important than the objective scoring was the fit - this idea of will Mr. Clements fit with us? Is he similar to the previous postholder? How will it work for the manager? Does she feel comfortable giving instructions to somebody who is older than her, which it became apparent that she didn't and that was quite clear from the judgement in this case, that she talks about the fact that Mr. Clements had a 12 year old daughter would make it very hard for her to give him instructions. So I think the key issues there Joe, the key mistakes made, were they moved away from objective and they became quite subjective and they moved into this area of recruiting for fit rather than recruiting the best candidate."

    Joe Glavina: "You mention how the Trust adopted a moderation process and it appears Clements still had the highest score even after that. What do you make of that? It sounds risky getting others involved after the interview."

    Kate Dodd: "Well, I mean, it sounded in this case like it was a recognised part of the process but, again, it sounds like perhaps there was not sufficient thought given to making sure that things like group-think didn't start to creep in there. When you have a moderation you're essentially introducing somebody to the team, in this case to see what the team think, to see whether the team feel that that person would work well, and this is exactly where we get into a very dangerous situation where affinity bias starts to be at play. People say, well, I'm not sure because the rest of us are young women and this is a middle aged man and, of course, when you've got an interview panel that isn't diverse in itself it is very easy for people then to just go along with this and to say yes let's make the decision between us that we don't think that this person is going to fit in and, of course, had there been a middle aged man in that kind of moderation process I suspect the outcome could well have been quite different."

    Joe Glavina: "We know that after the interview Clements was invited to meet the wider team informally over lunch, although he wasn't told he was still being assessed. I think that's quite a common practice. Do you think it's risky to do that because clearly it didn't help in this case?"

    Kate Dodd: "I think it would be very difficult to do that fairly and I think that any kind of process that involves something like an informal lunch - well really it's not an informal lunch because let's face it is people making their decisions. I suspect that most candidates would understand that they're being assessed throughout that the lunch or whatever it is, drinks or whatever, because actually, if they're not being assessed, then what's the purpose of that happening? I think it definitely would be much more advisable for business to just be very clear about the fact that this is a continuing part of the assessment process not least because it then helps the business to recognise that it needs to have a proper process and procedure in place around that because otherwise they had a really solid interview process up until that stage. But given that somebody went from being the highest scoring individual in the formal, objective, fair part of the process, to then not getting the job due to this informal moderation, well that in itself speaks to the fairness of this and, of course, in this case it wasn't just unfair, it was found to be discriminatory, obviously, on the grounds of age and have sex. So yes, I think it's a dangerous thing to have any sort of informal part of the process."

    That case of Clements v Guy’s and St Thomas’ NHS Foundation Trust is a decision of the London South Employment Tribunal and it is an interesting read, especially paragraph 33 dealing with what the wider team actually said to each other on social media – all of which had to be disclosed in evidence and was very damaging no doubt. We have put a link to the case in the transcript of this programme. 


    - Link to case report: Clements v Guy’s and St Thomas’ NHS Foundation Trust

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