Lawyer rejected because he was ‘expensive’ was discriminated against

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The decision to deny an experienced lawyer a job because he was considered “expensive” amounted to age discrimination.

An employment tribunal in Manchester found that Mr Levy’s age either contributed to, or was the principal reason for, McHale Legal’s decision not to appoint him as a commercial property solicitor, despite the claimant being the only candidate to apply for the vacancy.

At the time of his interview on 7 March 2018, Mr Levy was 57 years old. He had been a practising solicitor since 1985 and the job he applied for sought someone with at least five years’ post-qualification experience (PQE).

The interviewing manager, Ms Udalova-Surkova, told him that McHale Legal needed to hire somebody “fairly soon” because a senior associate was leaving the firm and work was “piling up” as new instructions were coming in.

Udalova-Surkova asked Levy what salary he was looking for. As the role was based in Manchester, he was aware that the salary would be less than the £60,000 he would expect to be paid in London, and suggested that the salary of the departing associate could form a starting point for discussing his expectations.

The associate was paid £42,000, but Levy suggested that he would be able to work for £50,000 for the first three months and also offered to work on a self-employed consultancy basis.

The following day, Udalova-Surkova met with other department heads to discuss the role. Notes from this meeting suggested that the claimant was asking for a salary of £50-£60,000 – which overstated what he said he would be looking for – and suggested Levy was “expensive” and “doesn’t cover all our needs”.

On 12 March, Levy received an email which stated his application had been unsuccessful. It said: “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 (‘mould’) to our specific requirements.”

In the meantime the work would be covered by Udalova-Surkova; a paralegal; and another paralegal who was an Isreali lawyer who had not yet qualified in England and Wales.

Levy brought a claim for age discrimination against the firm. In response, McHale Legal said the advertisement for a 5+ PQE solicitor was to test the market and enable it to decide whether to go ahead with provisional plans to recruit someone with this level of experience..

It said its decision not to recruit Mr Levy was based on the fact that a senior solicitor would command a higher salary, consistent with its note that the claimant was ‘expensive’. It decided it no longer required a “senior hire”, that it intended to monitor the situation and would then consider a “junior hire”.

The tribunal said in its judgment: “The notes [from the management meeting] gave no indication that the claimant’s application was given any real attention. Rather, the note made by Ms Udalova-Surkova said simply that he was ‘expensive’ and ‘doesn’t cover all our needs’. This suggested a cursory knee-jerk reaction to the salary expectations which Ms Udalova-Surkova had incorrectly told her colleagues to be £50-60,000, when the reality was that the claimant was willing to accept ‘around £50,000’.”

The tribunal felt the firm had little understanding and awareness of discrimination legislation, despite its “clumsily-worded” commitment in the handbook to “actively support … discrimination legislation.”

Employment judge Langridge 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.”

Compensation for Levy will be discussed in a hearing at a later date.

McHale Legal said it would appeal the decision.

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