The Employment Appeal Tribunal has recently addressed an issue that is of interest to many educational institutions: could making a PhD an absolute requirement when recruiting lecturers be indirectly discriminatory against older applicants? Unfortunately the EAT did not come up with a definitive answer, but in the best academic tradition, it has reformulated the question.

Stephen Games - a 62 year old architectural historian best known for his work on Pevsner – had not been shortlisted for a post at the University of Kent because he did not have a PhD. He argued that he was placed at a particular disadvantage by this requirement because of this age, since fewer older graduates tended to have PhDs. He supported this by statistics showing the increasing numbers of doctorates awarded in successive years, both generally and by reference to his speciality.

He also argued that the imposition of such a requirement could not be justified as a proportionate means of achieving a legitimate aim. In his words, the University had “put so much faith in the PhD that it failed to recognise the limitations of its chosen tool”. 

The employment tribunal had dismissed his claim, among other reasons because it thought that there was no statistical evidence that as an older applicant he was particularly disadvantaged. In any case there had been nothing to stop him getting a PhD at a later stage in his career – for example by submitting work that had already been published. Furthermore, even if the requirement did work to the particular disadvantage of older candidates, imposing it was clearly a proportionate means of achieving a legitimate aim and therefore justified.

The EAT was critical of this reasoning. It said that the tribunal should not have assumed that statistical evidence was necessarily required to prove that Mr Games was disadvantaged as an older candidate, and it was no answer to say that he could have acquired a PhD at some later point in his career, even if he did not appreciate he would need one on graduation. What mattered was the situation in which he found himself as an applicant. It also ruled that the tribunal should have given fuller reasons to support its decision on the University’s justification defence.

The end result was that the case will have to be remitted to the employment tribunal. As an appellate body, the EAT was not in a position to make its own decision. While the University will be in a position to mount a robust defence when the case returns to the tribunal, this decision is useful reminder to all institutions to assess the equality impact of any qualifications which are imposed as an absolute requirement at the shortlisting stage.