Job advertisements which specify that a minimum number of years' experience is required could be indirectly discriminatory on grounds of age unless the requirement is applied flexibly when short-listing candidates or is otherwise objectively justified. Care should be taken when drafting job advertisements to avoid references to number of years' experience required, wherever possible.
A school advertised a job vacancy for a teacher. The advertisement stated that it would "suit candidates in the first 5 years of their career". This was found to be indirectly discriminatory on grounds of age. The school's justification defence (that more junior teachers were cheaper) failed partly because of the unsatisfactory nature of the evidence: details of how the school's finances fluctuate based on annual government funding, pupil numbers and the changing profile of the teacher workforce would have been helpful.
A discriminatory practice is unlikely to be justified simply because the alternative was more expensive. But an organisation which can produce evidence showing that it was pursuing a legitimate aim, that it considered alternatives and it could not afford the alternatives without compromising this legitimate aim, may have the basis of a justification defence. (Rainbow v Milton Keynes Council, ET)
In reality, cost is the driving force behind much decision-making for many businesses. Economic factors such as business needs and efficiency may form part of a justification defence, particularly where there is no question of intentional discrimination, whether direct or indirect. Further, a distinction may be drawn between national policy and private employers. Whilst a national state may not be able to rely on budgetary considerations to justify a discriminatory social policy, a private employer seeking to justify an indirectly discriminatory practice may successfully rely on costs as part of a justification defence.
Employers should assess carefully the rationale for requiring a particular salary band or number of years' experience in any job advertisement. If a potentially indirectly discriminatory practice is favoured, partly for costs reasons, consider alternative financial strategies and other costs-savings measures before implementing the practice as this will help establish a justification defence if subsequently challenged. Also make sure that you are able to put convincing evidence before the Tribunal to support your costs arguments.