Cheryl Lobo v University College London Hospitals NHS Foundation Trust

The law

We are concerned with the employment, by the Secretary of State for Children Schools and Families, of teachers to work in the European Schools. These are schools set up to provide a distinctively European education principally for the children of officials and employees of the European Communities. The Staff Regulations, made by the board of governors pursuant to the Convention defining the Statute of the European Schools, limit the period for which teachers may be seconded to work in those schools to a total of nine years (or exceptionally ten). This is made up of an initial probationary period of two years, and a further period of three years, which is renewable for a further four years.

The principal question before us is whether these arrangements can be objectively justified as required by the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. This was the measure chosen by the United Kingdom to implement Council Directive 99/70/EC concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L175, p 43) (“the Fixed-term Directive”). The effect of regulation 8 is that a successive fixed-term contract is turned into a permanent employment unless the use of such a contract can be objectively justified.

It is important to understand that the Fixed-term Directive is not directed against fixed-term contracts as such. It has two more specific aims, set out in recital (14):

Those two purposes are spelled out in clause 1 of the annexed Framework Agreement. Clause 4 goes on to deal with the “principle of non-discrimination” and clause 5 deals with “measures to prevent abuse”:

The preamble and general considerations in the Framework Agreement recognise that “contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers” and also that they “contribute to the quality of life of the workers concerned and improve performance”. But they also recognise that “fixed-term employment contracts respond, in certain circumstances, to the needs of both employers and workers” and that they “are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers”. But the substantive provisions of the Framework Agreement do not attempt to define the circumstances in which fixed-term employment is acceptable. Instead they concentrate on preventing or limiting the abuse of successive fixed-term contracts, the abuse being to disguise what is effectively an indefinite employment as a series of fixed-term contracts, thus potentially avoiding the benefits and protections available in indefinite employment.

When implementing clause 5 of the Framework Agreement, the United Kingdom chose a mixture of options (a) and (b). Regulation 8 of the Fixed-term Regulations deals with “Successive fixed-term contracts”:

Thus the regulation only applies to a fixed-term contract where there has been at least one previous fixed-term contract or to a fixed-term contract which has been renewed. It continues:

Thus there is no need for objective justification for the current (that is, renewed or successive) contract unless and until the employee has been continuously employed for four years. But once he has, the latest renewal or successive contract has to be justified on objective grounds. Otherwise the contract will automatically be transformed into a contract of indefinite duration. As such it will still, of course, be terminable by whatever is the contractual notice period on either side.

The teachers’ complaint is not against the three or four periods comprised in the nine-year rule but against the nine-year rule itself. In other words, they are complaining about the fixed-term nature of their employment rather than about the use of the successive fixed-term contracts which make it up. But that is not the target against which either the Fixed-term Directive or the Regulations is aimed. Had the Secretary of State chosen to offer them all nine-year terms and take the risk that the schools would not have kept them for so long, they would have had no complaint. Employing people on single fixed-term contracts does not offend against either the Directive or the Regulations.

This is therefore the answer to Mr Giffin’s attractive argument: that fixed-term contracts must be limited to work which is only needed for a limited term; and that where the need for the work is unlimited, it should be done on contracts of indefinite duration. This may well be a desirable policy in social and labour relations terms. It may even be the expectation against which the Directive and Framework Agreement were drafted. But it is not the target against which they were aimed, which was discrimination against workers on fixed-term contracts and abuse of successive fixed-term contracts in what was in reality an indefinite employment. It is not suggested that the terms and conditions on which the teachers were employed during their nine-year terms were less favourable than those of comparable teachers on indefinite contracts.

It follows that the comprehensive demolition by the employment tribunal of the arguments for the nine-year rule is nothing to the point. It is not that which requires to be justified, but the use of the latest fixed-term contract bringing the total period up to nine years. And that can readily be justified by the existence of the nine-year rule. The teachers were employed to do a particular job which could only last for nine years. The Secretary of State could not foist those teachers on the schools for a longer period, no matter how unjustifiable either he or the employment tribunals of this country thought the rule to be. The teachers were not employed to do any alternative work because there was none available for them to do.

The Adeneler case [2006] ECR I-6057 is not in point. That concerned a national rule which provided a general “get-out” from the requirements of the Directive. It is not a question of whether the Staff Regulations “trump” the Directive. There is no inconsistency between them. The Staff Regulations are dealing with the duration of secondment, not with the duration of employment. In those circumstances it is questionable whether there is any duty of co-operation between the member states. It appears that the board of governors did not see any conflict between the Staff Regulations and the Directive.

This is scarcely surprising. The United Kingdom could have chosen to implement the Directive by setting a maximum number of renewals or successive fixed-term contracts, for example by limiting them to three. It could equally have chosen to implement the Directive by setting a maximum duration to the employment, for example by limiting it to nine or ten years in total. It is readily understandable why the alternative route of requiring objective justification after four years was taken: this is more flexible and capable of catering for the wide variety of circumstances in which a succession of fixed-term contracts may be used. Unless a very short maximum total had been chosen, it is more favourable to employees than the alternatives. But the fact that the alternatives would have been equally acceptable ways of implementing the Directive is yet another indication that the target is not fixed-term employment as such.

… that concept requires the unequal treatment at issue to be justified by the existence of precise and concrete factors, characterising the employment condition to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.

they have a legitimate objective, for example a genuine business objective;

it is necessary to adhere to that objective; and

it is an appropriate way to achieve that objective.

The facts

None of the substantive Consultants at the Trust have been appointed without at least evidence of them having been appointed either in this Trust or another Trust through an AAC process. Dr Hodgson was not aware of any other FT in London which does not use the AAC process for its substantive consultant appointments.

If the respondent Trust was a non-Foundation Trust, it could apply under the AAC Regulations for prior consent of the Secretary of State to not openly advertise a permanent consultant post [773]. If such approval is given, a formal panel must still be convened with the membership defined by the AAC Regulations to assess the candidate’s suitability for the role. The respondent Trust used its Foundation Trust discretion to mirror this exception in the claimant’s case because she had worked for the Trust for a long time. To ensure as fair a process in relation to its management of her, the Trust wanted to give her the opportunity to demonstrate her capability to be appointed to the substantive Consultant post without open competition. Following the Trust’s clear governance rules, it did set up an AAC panel. The claimant was given executive coaching for the panel interview to help her perform as best as possible, which was unusual. [emphasis added]

The locum Consultant role is fundamentally a service delivery clinical role, the purpose of which is for the person appointed to see patients for new appointments surgery and follow up, working within a multidisciplinary team. Typically, the Trust appoints locum Consultants to cover temporary service gaps such as transition periods whilst a service is being re-configured (it is said that this is what the Trust did with the claimant) or a period of planned leave of substantive colleagues such as sabbaticals or maternity leave. It uses the locum Consultant role to maintain a clinical service with senior doctor presence.

The contracts used for locum Consultants are the same as for the substantive Consultants. This is for administrative ease. The actual difference in what they do and are expected to do is reflected in the day-to-day practice. A locum Consultant will contractually rarely have more than 1 SPA (Supporting Professional Activity) built into their weekly Job Plan. This SPA allows time in their working week to complete tasks such as mandatory training, job planning, appraisal preparation, attending clinical meetings and professional learning. Substantive Consultants have a significantly larger number of SPAs (1.5 to 2.5) in their weekly job plan. This allows them time in the working week to undertake the wider managerial/governance work that is expected of the substantive Consultants, including audit, governance, internal/external meetings to discuss service performance and strategy, and leadership role duties if they have this responsibility. In addition, teaching and research takes place in these SPAs. The number of SPAs will vary according to the role that the substantive Consultant is carrying out and the team they are working in.

Locum Consultants are not expected to carry out this wider managerial/governance work nor are they encouraged or given the opportunity to do so. Dr Hodgson commented on the claimant’s statement that she carries out the Sarcoma Lead role within the Breast Service. This is not a role she has been given or is expected to undertake. It is not a role that is actively recognised in the Trust or the Service. It is something she has personally created from a perceived need. What the role means in practice is that the claimant undertakes the surgical procedure of removing the sarcoma growth from a patient’s breast or chest wall as designated by sarcoma MDT. While overall sarcomas are a rare tumour, only a small proportion affect the breast or chest wall, there being around 10 presenting patients under care at any given time. The claimant happens to have done more of this procedure than others. However, she is simply carrying out a procedure which is part of the duties of her clinical role. This is not a leadership role of the nature asked of substantive Consultants to undertake. Where substantive Consultants undertake a clinical lead role they are in charge of junior doctors, they drive the strategy and service improvement in a particular area and engage in meetings with the clinical director and the medical director about this. In the Breast Service there is a single clinical lead and the claimant has never undertaken this role and is not expected to.

The locum Consultant is not expected to carry out job planned formal teaching or research as part of the role. However, this is a focus of the substantive Consultant role. The Trust is a major teaching hospital and research centre. When it appoints substantive Consultants it does so on the understanding that they will progress this aspect of the role as well. Again, the degree to which they do so depends on the nature of the actual role and the team. The claimant has no demonstrable record in either area.

The substantive Consultant role that the Service needs is a 10 PA role. PA’s are programmed activities. Each PA is 4 hours. The PAs include the SPAs described above. A full-time substantive Consultant carries out 11 PA’s per week. The 10 PA substantive breast Consultant role will absorb and replace the locum Consultant role that the claimant is undertaking, specifically all the clinical duties. The claimant currently works 6 PAs per week.

The substantive role will also undertake a wider managerial gap that is much needed in the Trust. The Trust is in ongoing dialogue with the Whittington Hospital regarding joint Breast Service provision and the substantive Consultant will be expected to further move this dialogue forward. Additionally, they will need to engage in wider strategic meetings/discussions within the North Central London Trust area to again drive forward service improvement. Another area they will need to engage in is teaching and research. Teaching is something that the Service has lacked because of lack of resource due to meeting patient demand. This has resulted in the Trust having active trainees removed from its team as they could not be supported, which is detrimental to the service. The Trust needs to re-build this, and the substantive Consultant appointed will be expected to engage in this. The job description for the 10 PA substantive post is at [705] and shows that there is an expectation of 2 SPAs to be incorporated into the job plan to allow for management, governance and teaching elements to take place.

The substantive Consultant role and the locum role that the claimant is undertaking are different. The Breast Service does not require a permanent employee carrying out the role the claimant is currently carrying out – that is, “a permanent locum consultant”.

Furthermore, it is understood that in the Claimant’s most recent interview, whilst the Claimant was not appointed to the role (because other candidates were preferred), every panel member interviewing her considered that she was appointable – meaning that she had, amongst other things, sufficient managerial skills.

The conclusions of the Employment Tribunal

It may be helpful to begin by the Tribunal reminding itself (and the parties) what this case is not about and what the limits of the Tribunal’s jurisdiction and powers are.

This case is not about the claimant’s working relationship with the other Consultants in the Breast Service team. It is not about her internal relationship with those who managed her or administered her contractual relationship with the Trust, such as Mr Lavery, Dr Hodgson, Mr Carpenter, Ms Hughes or Ms Winn. It is not about the substance or the process in relation to complaints made against the claimant by some other Consultants, or grievances that she in turn raised, or decisions taken at first instance or on appeal about decisions to terminate her fixed term contracts or as to the length of extension or the conditions of extension (including proposing breaks in continuity of service). It is not about whether the claimant was or was not encouraged to apply for a substantive Consultant post or whether the decision not to appoint her to such a post was correct or otherwise. It is not about the fairness of that appointments procedure or about her grievance in relation to that. It is not about whether the claimant has been treated unlawfully or unfairly or detrimentally, whether because of her race or sex or fixed term status. It is not about whether the claimant does or does not have managerial and leadership experience and skills.

Of course, quite properly, all those matters have been explored to some degree in the evidence, not least because the claimant’s case is not simply that the decision to refuse to treat her as a permanent employee was not one that is objectively justified, but because she says that was a decision that was not taken in good faith. To that extent, those matters about which this case is not directly concerned assume some indirect significance in testing the respondent’s good faith and/or examining its objective justification defence. [emphasis added]

What this case is about is whether, all other things being equal, the Tribunal can declare under regulation 9 that the provisions in the contract that restrict its duration will cease to have effect and the contract will be regarded for all purposes as being a contract of indefinite duration because the conditions in regulation 8 of the Regulations apply. The key to that question – because all the other conditions are met – is whether at the time of the most recent renewal of her employment under a fixed-term contract that decision was or was not justified on objective grounds. [emphasis added]

The Tribunal’s jurisdiction goes no further. Its powers are limited to making a declaration or not making a declaration of the kind required by regulation 9 by reference to regulation 8. The Tribunal has no power to say that the claimant should be appointed to a substantive Consultant’s post. Its power, if it exercises it, is to declare that the claimant’s present contract as a Locum Consultant Breast Surgeon shall cease to be a fixed term contract, but that in all other respects its terms and conditions remain unchanged. She would thus remain a Locum Consultant Breast Surgeon on the same salary and subject to the same number of PA’s, but without an artificial fixed term attaching to that contract or that post. [emphasis added]

Much energy has been (perhaps understandably) expended in this case in trying to establish that the claimant has a track record of management and leadership experience. The respondent’s witnesses have sought to question that, particularly as Dr Hodgson did not recognise some of the labels that the claimant attached to her experience as reflecting duties or responsibilities that were expected of a locum consultant or had been the subject of an expressions of interest exercise or to which the claimant had been appointed or assigned (as opposed to the claimant herself seeking out these responsibilities). In the final analysis, however, the Tribunal is satisfied that the claimant has carried out these duties or responsibilities, either as a matter of fact or as part of her agreed job plan, and that is supported by the documentary evidence and the uncontested evidence of Dr Strauss and Dr Pattison.

Nevertheless, the futility of the exercise in attempting to establish that position is demonstrated by the Tribunal’s acceptance of Dr Hodgson’s evidence that the demonstration of management and leadership skills was to be established in interview and under questioning, and not by retrospective reference to a candidate’s curriculum vitae. In the Tribunal’s experience, that is now often the way in requisite skills are tested. It seems that the claimant was unable to demonstrate those skills in the process in which she was being assessed, even though no doubt she had those skills and had been practising them in the various roles that by one means or another she had been discharging.

The Tribunal accepts also that it matters very little whether at any given time the other (substantive) Consultants were discharging management and leadership responsibilities. It accepts Dr Hodgson’s explanation that such responsibilities are shared and rotated, and that at any given moment in time some Consultants will have such duties, while others do not. The Tribunal is satisfied that the Trust was entitled to expect that successful candidates for a substantive Consultant post could demonstrate propensity for or experience in management and leadership and could do so in “real time” in an interview process rather than simply as a matter of record on an application form or in a curriculum vitae.

Yet none of this really matters if one accepts, as the Tribunal does, that management and leadership responsibilities were not inherently a part of a Locum Consultant’s duties. Dr Hodgson gave a perfectly acceptable and credible explanation of that. It does not matter that the claimant failed – in her perspective, unfairly – to satisfy a panel or appointments committee selecting candidates for a substantive consultant’s post that she had management and leadership potential. The issue here is not whether she should have been appointed to a substantive post – and the Tribunal notes that an employer is entitled to set the bar for appointment as actually higher than a candidate simply being “appointable” – but whether her fixed term contract should have been regarded as permanent (or, at least, no longer fixed term). [emphasis added]

Thus to a large extent much of the evidence concerned with whether the claimant should have been appointed to a substantive position (and whether the process involved was unfair in some way) is a distraction – unless, which is the claimant’s case, it evidences a lack of good faith on the part of the respondent Trust when making a decision in relation to her fixed term contract as a Locum Consultant as to whether that contract and that position should henceforth cease to be fixed term.

Standing back from the evidence and findings above, the Tribunal is not satisfied that the respondent has acted with a lack of good faith. The claimant most emphatically does not say that there was bad faith – just a lack of good faith. It is possible to conclude that the complaints against the claimant, her grievances and the appointments process could have been handled better. The composition of the appointments panel is one such glaring example. However, that is insufficient, without more, to conclude that the respondent was acting throughout or at relevant points with an absence of good faith. The evidence and findings counter-balance any such impression – such as the encouragement given to her to apply for the substantive post; the ring-fencing of that post for her in the first instance; and the provision of coaching for her. [emphasis added]

That leaves the Tribunal with the central question and the only question that it can answer.

The claimant is an employee currently employed under a fixed-term contract. That contract has previously been renewed or she has previously been employed on a fixed-term contract before the start of the current contract. The claimant has been continuously employed under fixed-term contracts for four years or more. At the time of the most recent renewal, was employment under a fixed-term contract justified on objective grounds? If the answer to that question is in the negative, then an employee on a fixed-term contract will be regarded as a permanent employee and the provisions in the contract that restrict its duration will cease to have effect and the contract will be regarded for all purposes as being a contract of indefinite duration. If the answer is in the affirmative, then no declaration can be made in the claimant’s favour and the status quo remains.

Given the mischief at which the Regulations are directed, and given the employment history of the claimant recounted above, the respondent’s objective justification defence is subjected to scrutiny with some care on the part of the Tribunal. The use of a further fixed-term contract should be aimed at achieving a legitimate objective; necessary to achieve that objective; and an appropriate way to achieve that objective. That assessment relates to the renewal of the most recent employment contract (Duncombe). Nevertheless, the Tribunal also has regard to the existence, number and cumulative duration of successive contracts of this type concluded in the past between the respondent and the claimant as part of its overall assessment (Kücük).

The fact that the Regulations themselves implicitly authorises the use of successive fixed-term contracts is not in itself objective justification (Adeneler). “Objective reasons” mean precise and concrete circumstances characterising a given activity which in that context justify the use of such contracts.

Fixed term contracts are often used as a means of providing temporary or locum cover. The need to cover staff shortages may in principle constitute an objective reason justifying the continued use of fixed-term contracts, even if temporary cover is required on an ongoing basis (Kücük). Where an employer has a large workforce, it is inevitable that temporary replacements will frequently be necessary due to employees being unavailable for a variety of reasons. In these circumstances the temporary replacement of employees could constitute an objective reason justifying the use of successive fixed-term contracts.

However, the renewal of fixed-term contracts to cover the need for permanent staff (as opposed to the need for replacement staff) is not justified (Kücük). The renewal of successive fixed-term contracts must be intended to cover temporary, as opposed to permanent, needs. Nevertheless, the mere fact that the need to cover temporary personnel shortages could be met by hiring permanent staff (even where those shortages are recurring or even permanent) did not mean that an employer who uses successive fixed-term contracts is acting in an abusive manner. The Regulations are aimed at the misuse of fixed term contracts.

The Tribunal has paid particular attention to the case of Pérez Lópezi. It is a case with some similarities to the present case. The successive renewal of fixed-term contracts in the health sector could not be relied on to justify the successive renewal of a nurse’s fixed-term contract to cover needs that were fixed and permanent. The Tribunal recognises that temporary replacements are inevitable in a large public sector service, such as healthcare. In the present case, have the claimant’s successive appointments appeared to cover simple temporary needs or not? In Pérez Lópezi the use of temporary contracts in the Spanish health service was “endemic”. It appeared that the permanent posts created were being filled by appointing fixed-term staff, with no limitation on the duration of appointments or the number of renewals, thus perpetuating the workers’ precarious situation.

The Tribunal has been alert to that possibility here. No data or evidence of a statistical nature was put before the Tribunal. The claimant’s case was viewed entirely in isolation. No comparative material was put into evidence. The Tribunal asked Dr Hodgson about the degree of use of locum consultants. He answered as best he could, without being on notice of the question, that the use of locum consultants was highly variable and perhaps more so at present than at any other time. Nevertheless, on the evidence before the Tribunal, it does not appear that the use of locum contracts in this Trust and in relation to consultants generally or within any particular service is “endemic”. There is no suggestion that locum contracts are typified as being without limitation on duration or number of extensions. There is no evidence of abuse or misuse, or of precarity. [emphasis added]

Standing back again, has the respondent established an objective justification to not treating the claimant’s locum contract as no longer fixed term? What is the respondent aiming to achieve by way of a legitimate objective? Is it necessary to achieve that objective? Is it an appropriate way to achieve that objective?

The respondent describes its objective justification in this way. It had the legitimate aim of providing a safe, efficient, and fully functioning Breast Service. It was appropriate and necessary to engage the claimant on a fixed term contract because: (i) the Breast Service should not be left under-staffed where this is avoidable, as this would be both inappropriate and unsafe for the patients it looks after; (ii) it would be disproportionate and inefficient to terminate the claimant’s fixed term contract and recruit a new consultant on a fixed term contract for an interim period (including to support its surgical offering until such time as a substantive appointment is made); and (iii) there is a clear need for the Breast Service to recruit a permanent substantive Consultant pursuant to the AAC Regulations which entail a rigorous selection procedure from a pool of suitably qualified candidates. See paragraphs 5 and 15 of the ET3 [31 and 32-33].

The claimant, through her counsel, takes issue with the framing of the objective justification in that way. It is said that this is misconceived. The submission is that the question of justification is misdescribed. The respondent is said to be asking the wrong question: whether it is proportionate to keep the claimant on a fixed-term contract until the respondent employs a permanent consultant? The question, the claimant says, should be: if the legitimate aim is the provision of a safe, efficient and fully functioning Breast Service, then is keeping the claimant on a fixed-term contract a proportionate means of achieving that aim.

The Tribunal does not agree. It is for the respondent to identify its objective justification. It is not for the claimant or the Tribunal to reconstruct it. It will stand or fall on its own terms. In any event, the way in which the claimant seeks to frame the question artificially ignores the circumstances, context and background of this workplace and this employer. [emphasis added]

The Tribunal accepts the respondent’s submission that, as at the date that the latest fixed-term contract was due to expire and was renewed, the respondent knew that the service review, which took into account how it would work with other neighbouring NHS Trusts in North London, was finally complete, and that it needed to appoint a substantive Consultant Breast Surgeon on a 10PA standard contract which would be on a permanent basis now that the period of uncertainty caused by the review was at an end.

Again, the Tribunal agrees that it was appropriate and necessary to appoint such a Consultant under the AAC Regulations. The claimant was interviewed under these conditions, but she was not successful. The respondent was entitled to seek the best person for the job through a prescribed process that all NHS Trusts follow. Note that the claimant was not being interviewed to decide whether her locum contract should be made permanent or treated as no longer fixed term. She was being interviewed for appointment to a substantive post. The Tribunal keeps clearly in mind the distinction between locum and substantive posts, between temporary and permanent posts, between fixed term and open-ended appointments, and between part-time and full-time contracts.

Moreover, the Tribunal concurs that it was appropriate and necessary to secure the provision of clinical services to meet the needs of patients pending the appointment of the substantive Consultant and to use a fixed term contract for a Locum Consultant Surgeon to do so, especially given the likely shortterm duration of any gap in appointment. The delays in the review process had occurred largely because of and during the pandemic. The delays in the appointments process were then in part due to the claimant’s internal grievances or complaints. The Tribunal cannot accept that the claimant should simply have been given the substantive post. Even if there is a common minimum threshold for appointment as a locum or substantive consultant, it does not follow that the respondent was required to appoint the claimant to the substantive post regardless of her performance in a selection process.

It is unreasonable to consider that the respondent should have hired different surgeons under a series of fixed-term contracts or that it should not have secured sufficient clinical and surgical provision for its patients. A single fixed-term contract could have been agreed at the outset, with hindsight, but that presupposes a level of certainty about the review that was not possible.

The use of a fixed-term contract in the claimant’s case had been the subject of mutual consultation. The Tribunal agrees that it was neither abusive nor discriminatory in all the circumstances. The respondent’s position that the claimant’s contractual position was conditional upon the service review and agreement as to the way forward for the Breast Service, as well as being fixed term and not permanent in nature, has been clear and transparent throughout.

Overview

Ground 1 The EJ erred in his phrasing of the correct legal question to be asked.

Ground 2 EJ erred in allowing the Respondent’s terminology of “locum” and “substantive” to emasculate the Regulations.

Ground 3 The EJ erred in treating the fact that locum and substantive roles were “different” as being determinative and failed to weigh the extent of the difference when considering whether the Respondent’s conduct was justified

Ground 4 The EJ erred in failing to address the Claimant’s case as to a lack of good faith and/or his conclusion on the subject of good faith is not Meek compliant given the evidence before him

Ground 5 After the submission of her ET1, the Claimant applied for the role of a substantive consultant oncoplastic breast surgeon and was found to be appointable. She was not given the role because the Respondent considered other candidates outperformed her during the interview. The EJ did not directly address the question of whether the Claimant should have been given that role rather than it having been given to the best candidate.