The claimant in Games v University of Kent was a part-time lecturer at the employer's School of Architecture.  In 2012, when the claimant was 59, the School advertised new full-time lecture posts, with an essential requirement that applicants should hold a PhD.  The claimant was rejected during shortlisting because he did not have a PhD and there was no reasonable expectation of his being awarded it before he would take up the post.

He argued unsuccessfully in the tribunal that the requirement for a PhD constituted indirect age discrimination. He had produced statistics purporting to show that doctorates were unusual when he was a student in the 1970s and that the requirement for a PhD discriminated against those older than 56.

The tribunal rejected his claim because he had not established that he and his age group were at a "particular disadvantage" because of the requirement.  As well as the conventional research route, there is also a procedure for obtaining a PhD on the basis of publications.  The claimant had made an application for this in 2009 but it had been rejected.  The claimant could have sought a PhD in the usual way but did not wish to do so.

The EAT upheld his appeal. The Supreme Court case of Homer v Chief Constable of West Yorkshire Police (which had decided that a 61 year old employee may have suffered indirect discrimination when he was rejected for a top salary grade because he did not have a law degree) had established the correct approach.  It was not necessary for the claimant, in order to establish a particular disadvantage to himself and his group, to be able to prove his case by statistics.  Statistics would be important material but the claimant's own evidence, or evidence of others in the group, might equally well provide compelling evidence of disadvantage.

As to the point that the claimant had already had a lifetime in which to obtain the PhD, the question whether the claimant is placed at a particular disadvantage must be assessed at the time when the requirement is applied.  It is not an answer for the employer to say that an applicant would not have placed at a disadvantage if he had behaved differently at some other time.

The case will now go back to a new tribunal to reassess the evidence.  The issue of potential justification of the requirement for a PhD will also be considered – the original tribunal had found that the requirement was a proportionate means of achieving the legitimate aim of strengthening the School's research credentials. 

The case is a reminder of the need to assess whether any essential criteria specified for a post might have an impact in terms of potential age (or other) discrimination.