How can employers avoid falling foul of the law?
Indirect discrimination occurs when a policy or practice is applied to all employees but negatively impacts on a group sharing a protected characteristic such as age, race or sex etc. To prove indirect discrimination, the employee must show that the policy or practice puts a particular group at a disadvantage and puts them personally at that disadvantage. The onus is then on the employer who must justify the policy as a proportionate way of achieving a legitimate business aim. The Employment Appeal Tribunal (EAT) has looked recently at what an employee must do to show disadvantage in Ryan v South West Ambulance Services.
The employee was a manager and was 66 or 67 years old. The employer operated a Talent Pool to identify future leaders and maintain existing leaders. The pool was used to fill some vacancies quickly without wider advertising. Employees could go in the Talent Pool if they exceeded expectations in appraisals, via an appeal if their grading was lower, or by self-nomination. The employee’s appraisal said she met expectations and she did not appeal or self-nominate for entry to the pool. The employee applied for a managerial role which was advertised in the Talent Pool but was told she couldn’t apply for it. She brought an indirect discrimination claim, saying employees aged 55 and over were underrepresented in the pool (the group disadvantage) and she was unable to apply for the roles because she wasn’t in the pool (the individual disadvantage). The employment tribunal found that a policy of promotion only via the Talent Pool did have a negative impact on employees aged 55 and over. The over 55s had a 1 in 73 chance of being in the pool rather than a 1 in 34 chance for employees under 55. But the employee’s personal disadvantage – her inability to apply for the roles - wasn’t because of the policy but because she had failed to take any steps to enter the Talent Pool. As a result, there was no causal link between the policy and her individual disadvantage.
The EAT disagreed. The group and individual disadvantages need to match up and they didn’t in this case. This meant the tribunal had got it wrong. The employer applied a policy – recruiting from the Talent Pool – which limited recruitment to senior roles. Although there were legitimate reasons for this, it disadvantaged a group of older employees – those over 55. It disadvantaged the employee. She was affected by the policy because she couldn’t apply for the promotional roles. The employer did not adduce any evidence to show why the discriminatory effect of the rule wasn’t relevant in her case. Ironically, to succeed in this argument, the employer would need to show that it was likely she would have been put in the Talent Pool had she appealed her appraisal or self-nominated. They did not do this. Indirect discrimination was made out (subject to justification). The EAT also said the tribunal was wrong to say the policy was justified because they had not looked properly at its discriminatory effect and any lesser measures which could have been taken instead.
The lesson for employers in this case is to analyse and monitor the discriminatory effect of any policies. If one or more groups are negatively impacted, consider what steps you can take to remove or lessen the disadvantage. In this case, a less impacting policy might have been to allow Talent Pool members to go head to head with other employees for promotional jobs. Another important point for employers is about the group and personal disadvantage corresponding in indirect discrimination cases. Without getting the technicalities right at the outset, any tribunal reasoning was bound to be flawed.
