11th November, 2020
Mrs Elizabeth Ryan v South West Ambulance Services NHS Trust
The Employment Appeal Tribunal has overturned an earlier case involving an allegation of age discrimination.
On 6 October the EAT published the judgment of Judge Tucker who found that the first Tribunal was wrong in its conclusion that the Claimant, Mrs Ryan, had not suffered a disadvantage as a result of their recruitment practices and the practice was a proportionate means of achieving a legitimate aim.
Mrs Ryan has been employed by the South West Ambulance Services NHS Trust (‘the Trust’) since 1991, with her current role being “Education Business Manager” (Band 8a). At the time of her complaint, she was aged 66 – 67.
The Trust introduced a Talent Pool in 2015 – 2016 to identify and develop employees for leadership and management positions. Line managers could admit Trust employees into the Talent Pool if they were deemed to have “exceeded expectations” during a one to one meeting (known as a ‘Career Conversation’). Employees who did not achieve the necessary grade could appeal the performance assessment. Finally, it was open to employees to self-nominate for inclusion in the Talent Pool, with applications being accepted for a limited time period twice yearly.
The Talent Pool had two distinct groups – one for aspiring Leaders who were in Band 1 – 7 positions; and one for existing Leaders in Band 8a roles or higher.
The Talent Pool enabled managers to fill vacancies more quickly, by identifying employees for those roles without the need to advertise the position externally.
Mrs Ryan received an appraisal in March 2017 which confirmed that she was ‘meeting expectations’. She chose not to contest the decision and did not apply separately for inclusion in the Talent Pool.
When an opportunity for promotion arose in September 2017, Mrs Ryan sought to apply but was told that the vacancy would be filled by an employee in the Talent Pool. The vacancy would only open to applicants outside of the Talent Pool in the event that it remained vacant. Mrs Ryan was therefore not considered for the role.
Claim in the Employment Tribunal
The Employment Tribunal did not accept Mrs Ryan’s argument that the use of the Talent Pool had put her individually at a disadvantage. They analysed the membership of the pool and found that only 6% of employees in the Talent Pool were in the age group 55 – 70. This was despite 12% of the Trusts total employees being in this age group. The Tribunal concluded that ‘employees aged below 55 have a 1/34 chance of being in the Talent Pool, whereas employees aged over 55 only have a 1/73 chance of being in the Talent Pool.’
While the Tribunal accepted that the practice of using a Talent Pool to recruit for leadership positions put older employees as a group at a disadvantage and that Mrs Ryan had been affected by that disadvantage, it concluded that there was no causal link between the practice of using a Talent Pool and the individual disadvantage suffered by her. The Tribunal concluded that Mrs Ryan had in effect contributed to her disadvantage by not appealing the grading from her line manager and failing to nominate herself for inclusion in the Talent Pool.
Employment Appeal Tribunal
Mrs Ryan was granted leave to appeal the decision in the Employment Appeal Tribunal.
The EAT concluded that the Tribunal had erred in their conclusion ‘that there was no causal link between the PCP and the disadvantage suffered by the Claimant.’
The EAT held that the Talent Pool represented a group disadvantage to older employees, as a smaller percentage of employees aged 55 to 70 had been included in the pool. The practice of recruiting for vacancies from the Talent Pool meant that older employees were less likely to be considered for those senior roles and no one could say that it was the failure to self-nominate or appeal her appraisal with prevented her from being in the Talent Pool. Mrs Ryan was also subject to the same disadvantage as she had not been put into the Talent Pool, and as a result, she had not been able to apply for two positions.
It was for the Trust to prove that the discriminatory effect of the rule was not at play. However, the Trust did not provide any such evidence.
Employers are reminded to consider whether their policies or practices could amount to discrimination, whether direct or indirect, against certain groups of employees. Where such practices are in use by an employer, consideration should be given to whether the practice can be justified.
If you require advice or guidance relating to your policies or recruitment practices as an employer, then contact Adam Haines at Aaron & Partners LLP.
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