Indirect age discrimination occurs where an employer applies an apparently neutral provision, criterion or practice (PCP), but the PCP puts individuals in a particular age group at a disadvantage. Discrimination in relation to an employer's PCP can be justified if it can be shown that it is a proportionate means of achieving a legitimate aim. Employees who consider that they have been disadvantaged by a PCP because of their age can bring a claim under the Equality Act.
The facts of Ryan v. South West Ambulance Services NHS Trust
The claimant, who was in her mid-sixties, worked for the South West Ambulance Services NHS Trust as a Learning and Development Officer. This particular NHS Trust had devised a recruitment tool called the "Talent Pool", which involved establishing a pool of high-performing and talented employees. The Talent Pool was constructed to fill some of its vacancies, reducing the need to interview external candidates and allowing the Trust to fill roles quickly. There were two ways for an employee to enter the Talent Pool – either via an appraisal process or a process of self-nomination.
During 2017, two managerial roles became available within the Trust. The first role was filled immediately from the Talent Pool. Mrs Ryan was not in the Talent Pool and so she was not considered for this post. Mrs Ryan submitted a formal expression of interest in the second role, but she was told that she could only apply if the vacancy could not be filled from the Talent Pool. The second role was allocated to an individual in the Talent Pool.
Mrs Ryan brought a claim of indirect age discrimination. She argued that, by creating a Talent Pool for allocating employment positions, the Trust operated a PCP that indirectly discriminated because of the under-representation of employees in her age bracket (aged 55-70).
The Employment Tribunal (ET) dismissed Mrs Ryan's claim. It held that, as she had not actively tried to become part of the Talent Pool, there was no causal link between the disadvantage Mrs Ryan had suffered and the PCP in question. The ET also held that the PCP was a "proportionate means for achieving a legitimate aim", specifically, a form of succession planning for positions necessary in an emergency response organisation.
The EAT's determination
Mrs Ryan successfully appealed the ET's decision. The EAT found that the ET was incorrect to say that Mrs Ryan was not put at a disadvantage by the PCP. There were statistics to show that there was a reduced likelihood, due to age, of employees aged 55 and above being in the pool, and this showed that there was a group disadvantage. Mrs Ryan was also personally disadvantaged because she was not considered for roles for which she would otherwise have been considered because the employer had looked to fill the vacancies from the pool. The Trust had argued that Mrs Ryan had not tried to access the pool by all routes available to her, but they failed to provide any evidence of this and so could not prove that the discriminatory effect of the rule was not at play in her particular case. The EAT therefore ruled that the application of the PCP resulted in disadvantage to the claimant, and not the claimant's failure to apply to the Talent Pool. The EAT also rejected the Tribunal's decision that the PCP could be justified in the circumstances.
Pools are helpful, particularly if you are a large employer. However, the construction of any pool must be given considerable thought. Employers should consider whether the access route to a pool causes any particular problems for someone with a protected characteristic under the Equality Act (i.e. age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, and pregnancy and maternity).
Employers should be aware of the possibility of group disadvantage, and not only any disadvantage suffered by an individual, in relation to these characteristics. The potential for both indirect and direct discrimination should also be kept in mind. A full audit of the different types of risk should be carried out before using any pool to make a recruitment/promotion decision.
Additionally, those presenting in the EAT, and indeed the ET, should be aware of the particular way of presenting group and individual disadvantage in discrimination cases. Both disadvantages should be articulated clearly and in the correct order. HHJ Tucker, the appeal judge in this case, stated that the group disadvantage should be identified first, followed by the corresponding individual disadvantage. She stated that failure to express these concepts properly was "likely to lead to many problems in the ensuing litigation".