Last week’s decision from the Employment Appeal Tribunal about shortlisting for an academic post is a reminder about the particular difficulties that employers can face with claims of indirect age discrimination.
Two years ago in Homer v Chief Constable of West Yorkshire Police the Supreme Court was called upon to assess the discriminatory effect of insisting that the claimant had a law degree before considering him for internal promotion. In that case Baroness Hale gave some extensive guidance about the correct approach to assessing the employer’s justification defence in indirect discrimination claims.
Homer has already been considered in a number of times at EAT level, with this case being the most recent example. The question that the EAT had to address was whether insisting on a PhD qualification before considering the claimant for the post of university lecturer was unjustified indirect discrimination on grounds of age. Our separate posting here has a more detailed account of the facts which are of particular interest to educational institutions, but the EAT’s comments on the correct approach to justification have a wider relevance.
Rather unhelpfully, the wording in the Equality Act frames the justification test in terms of a “proportionate means of achieving a legitimate aim”. However, it has long been clear that “proportionate” needs to be interpreted in line with the test under EU law, which requires the means chosen to be both “appropriate” and “necessary”. It follows that when making a decision on the employer’s defence, the tribunal must make a reasoned decision addressing both elements of the test. Given that the onus is on the employer to establish justification, its evidence must therefore give the tribunal the material it needs to support its reasoning if the defence is to succeed.
As Baroness Hale pointed out in Homer, the particular challenge with our relatively new age discrimination law is that it outlaws employment practices that until recently have been completely lawful. It probably did not occur to many people until this recent case that imposing a requirement that an academic has a PhD could be indirectly discriminatory. It may well be that the university in this case is able to establish justification when the case returns to the employment tribunal. But it does underline the truth of Baroness Hale’s concluding comment about the difficulty of balancing the competing interests of different age groups: “We all have a lot of learning to do.”