Siobhan Murphy
Posted on 20 Oct 2020

When might an employer be indirectly discriminating on the basis of age?

Ryan v South West Ambulance Services NHS Trust UKEAT/0213/19

The Facts

The Claimant was employed as the Education and Business Manager at the Respondent since 2013 and was over the age of 55. The Respondent had adopted a recruitment tool (the Tool), for the purposes of identifying and developing future leaders and managers within certain managerial bands. Amongst the reasons for this was that it helped to retain existing leaders and would mean that the Respondent had an identified pool of high performing employees who could benefit from various progression opportunities. Employees only had access to the Tool where:

  1. The employee was graded as "exceeding expectations" by their line manager.
  2. The employee appealed to an independent manager following a grading less than "exceeding expectations".
  3. The employee self-nominated for inclusion.

The Claimant was a grade 8a manager and was graded as "meeting expectations" by her line manager. She did not appeal her grading in accordance with point (2) above, nor did she self-nominate herself for inclusion to the Tool. As a result, she did not have access. Following this, the Claimant later became aware of an opportunity for another Band 8a role for which she wanted to apply. However, the role was only advertised in the Tool and, as such, she could only apply if the Respondent was unable to recruit directly through the Tool in the first instance.

When she was unable to apply, the Claimant subsequently brought a claim for indirect discrimination on the grounds of age on the basis that employees aged 55 and over were under-represented in the Tool.

What is indirect age discrimination?

The Equality Act 2010 provides that indirect age discrimination occurs where:

  1. A applies to B a provision, criterion or practice (PCP);
  2. B is of a particular age or age group;
  3. A applies that PCP to persons not of the same age or age group as B;
  4. the PCP puts persons of B's age or age group at a particular disadvantage when compared to other persons;
  5. the PCP puts B at that disadvantage; and
  6. A cannot objectively justify the PCP.

As can be seen, it is a legal requirement for an employee, when proving indirect age discrimination, to show that the PCP puts members of a specific age group at a disadvantage and that it puts the particular employee at that disadvantage.

Where this is shown, the only defence that an employer can rely upon is showing that the PCP was objectively justified. This requires an employer to show that there is a legitimate aim and that the PCP is a proportionate means of achieving that aim. This commonly requires the employer to show that there are no less discriminatory means available to achieve the aim.

What was held?

In the first instance, the Employment Tribunal (ET) made a finding of fact that employees below the age of 55 had a 1/34 chance of having access to the Tool, while employees aged 55 or above only had a 1/73 chance. The PCP was identified as only promoting managerial staff on the basis of their pre-existing membership to the Tool. On the face of it, this meant that the Claimant was at a disadvantage because of her age.

However, it was also important that the Claimant had not tried to gain access when she had the opportunity. She did not appeal her grading or self-nominate. As such, it was held that there was no causal link between the PCP and the individual disadvantage suffered by the Claimant. She was an "undeserving" Claimant and, in any event, the Tool was a proportionate means of achieving the legitimate aim of succession planning.

The Claimant appealed the decision to the Employment Appeal Tribunal (EAT), which focused on whether the relevant group disadvantage and individual disadvantage had been clearly identified at the initial hearing. It was held that the ET had not clearly articulated either disadvantage, nor considered them in the correct order of first identifying the group disadvantage before moving onto whether any corresponding individual disadvantage existed. This had meant that the ET wrongly considered an indirect discrimination claim as the group disadvantage was expressed in different terms to the individual disadvantage.

When considered correctly, the PCP in question was held to limit the pool from which applicants in more senior roles within the organisation could have been selected for opportunities. It was not fatal to the claim that the Claimant had not appealed her grading, as it was never considered why she was only graded to be "meeting expectations" and not "exceeding expectations". The employer needed to demonstrate that her lower grading was not because of the group disadvantage for this to have been a reliable defence.

As such, the Claimant was affected by the PCP as she was not considered for roles which she would otherwise have been. The EAT also disagreed that there had been any objective justification. There was no evidence as to why the Tool was needed, nor whether lesser measures could have achieved the same aim. The ET's decision could not stand.

What can employers take from this?

The case emphasises the importance of distinguishing between the group disadvantage and the individual disadvantage when considering an indirect age discrimination claim, and the impact this can have on the outcome.

A key point for employers, when imposing any potentially discriminatory measures, is to make written records of any alternative measures considered which are potentially less discriminatory. The record should include an analysis of the alternative and reasons why its implementation is unsuitable. Where this is done, it is more likely that any discriminatory actions will be objectively justified. The employer will have truly put their mind to other less discriminatory means of achieving their aim. Whilst this is always easier to identify in hindsight, it may be beneficial for employers to get into the practice of considering potentially discriminatory implications of all HR business decisions.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Siobhan Murphy to discuss any issues you are facing.