Rainbow v Milton Keynes Council - Employment Tribunal
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". The Claimant, an experienced teacher, who already worked at the school in a different role, applied for the job, but was not considered.
The school's decision was found to be indirectly discriminatory on grounds of age. Its justification defence was based on cost grounds. It failed partly because insufficient evidence had been adduced of the costs consideration. The Tribunal held that 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.
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, and there should always be an explicable rationale for requiring a particular number of years of experience.
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, whether direct or indirect. However, this will not be successful unless other alternative measures have been considered first. All decisions should have evidence of the rationale behind them.