In a rare age discrimination case, the Employment Appeal Tribunal held that an employee was indirectly discriminated against on grounds of age when she was excluded from applying for a promotion because she was not in the employer’s ‘talent pool’.   Mrs Ryan, who was in her late 60s, was the education and business manager for South West Ambulance Services NHS Trust.   The trust had developed a recruitment tool called the ‘Talent Pool’ (TP), to identify and develop future leaders and managers, and retain existing leaders and managers. The trust therefore had an identified pool of high-performing employees who could benefit from additional opportunities. There would also be a limited need to advertise roles, which could be filled quickly.   Employees could access the TP in three ways:

  • Being graded as ‘exceeding expectations’ by their line manager
  • Appealing a grading which was below ‘exceeding expectations’
  • Self-nomination

Mrs Ryan was graded as ‘meeting expectations’ by her line manager and did not appeal this grade, nor did she self-nominate for inclusion in the TP.   She then became aware of a promotion opportunity. She was told that the role was advertised in the TP and that she could only apply if the trust could not recruit someone through the TP. The trust filled the vacancy through the TP so Mrs Ryan was not considered for the role.   She complained that she had been indirectly discriminated against on grounds of age as she was not able to apply for promotion because she was not in the TP. Her claim was based on the fact that employees aged 55 and over were under-represented in the TP.   The employment tribunal found that she had not ‘realistically’ tried to gain entry to the TP since she failed to self-nominate herself or to appeal her grading. It said there was no causal link between the practice of only promoting managerial staff on the basis of their membership of the TP and the individual disadvantage suffered by Mrs Ryan. She was an ‘undeserving’ claimant because the disadvantage she suffered had nothing to do with the trust’s practices.   The tribunal found that, in any event, the TP was a ‘proportionate means of achieving a legitimate aim’. Mrs Ryan’s claim for indirect age discrimination failed.   She appealed to the EAT which highlighted that the group disadvantage and individual disadvantage had not been clearly articulated. The correct order would have been to identify the group disadvantage first and then the corresponding individual disadvantage.   Mrs Ryan established that there had been a group disadvantage since there were statistics showing that there was a reduced likelihood, due to age, of employees aged 55 and above being in the TP. The EAT also held that she was personally disadvantaged because she was not considered for roles that she would otherwise have been considered for because the trust filled the vacancies from the TP. The trust argued that she had not tried to access the TP by all of the routes available to her, but did not provide evidence of this, so could not prove that the rule was not discriminatory in Mrs Ryan’s case.   The EAT found that the employment tribunal had erred in not considering any evidence or making any findings about what would have happened if Mrs Ryan either appealed her appraisal mark or had self-nominated to the TP. It could not be said that the consequence of self-nominating or appealing her appraisal would have been that she would have been placed in the TP (equally, it could not be said that it was her failure to do either of those things which prevented her being in it). To succeed in its ‘undeserving claimant’ argument, the trust would have to have proved that this was because of her performance, or other reason, and not because of the group disadvantage or something related to it such as the application of stereotypical assumptions about age.   The EAT also held that the decision on objective justification could not stand because the employment tribunal failed to critically evaluate the discriminatory effect of the provision, and the reason and need for it.   This case is a good example of how a seemingly innocuous process, backed by sound business reasons, can have a discriminatory effect. The employer may have been able to defend the policy but does not appear to have had (or submitted) the evidence in order to enable it to do so. If employers are grouping people together for promotions or opportunities, it is important to think about whether that could have a discriminatory effect and, if it could, to consider whether there are alternatives that would eradicate the discriminatory impact. If there are no sensible alternatives, also consider whether that in itself is a justification or whether there are other ways of justifying the process.