It was not indirect age discrimination to use an internal Talent Pool when deciding who to recruit. Even if it were age discrimination, it would have been justified.
Facts
Mrs Ryan worked at South West Ambulance Services NHS Trust (“the Trust”) as Learning and Development Officer. Her role was graded at Band 7. She was aged in her mid-60s.
A part of her responsibilities involved the development of the Trust’s Talent Pool (“the Pool”). This Pool was created to help the Trust quickly fill leadership and management positions without needing to advertise and interview external candidates. Because the Pool contained those employees who were well-suited to managerial positions, it was the first place that the Trust looked to when filling roles.
There were two ways to enter the Pool. The first was through an appraisal process, with those exceeding expectations gaining entry to the Pool. The second was through a process of self-nomination, and there was at least one instance of an individual who successfully accessed the Pool through self-nomination, despite an unsuccessful appraisal process.
Mrs Ryan had various appraisal meetings, none leading to her exceeding expectations. There was a two week window for self-nomination in February 2017 and another in September 2017, neither of which Mrs Ryan used.
In or around September 2017, there was a vacancy for Head of Education. This was filled from within the Pool. Another vacancy – Learning and Development Manager at Band 8a – then arose. It was also filled through the Pool. Mrs Ryan applied and was not considered for either role because they had already been filled by those within the Pool.
Mrs Ryan brought a claim of indirect age discrimination. She alleged that the use of the Pool put those aged 55-70 at a disadvantage and that, as a 67 year old, she suffered that disadvantage.
Decision
The provision, criterion or practice (“PCP”) identified by the Tribunal was that staff would be promoted/recruited into management positions mainly “on the basis of their pre-existing membership of the Talent Pool”.
The key issue was whether it caused any disadvantage and, if so, whether it could be justified.
Disadvantage
The Tribunal said that the Pool did cause a disadvantage, but it was not a disadvantage that Mrs Ryan suffered.
The age demographics of the Pool did not reflect the general population within the Trust. Older workers were less represented within it. Whilst 12% of the Trust was aged 55-70, just 6% of the Pool was aged 55-70. As the Trust used the Pool to mainly recruit/promote staff, there was therefore a lower chance of those aged 55-70 being appointed. The Tribunal said that these statistics speak for themselves: Mrs Ryan’s age group was therefore disadvantaged. It rejected the Trust’s argument that the reasons for the under-representation were not unlawful. This was irrelevant.
However, the Tribunal noted Lady Hale’s comments in Essop that it is open for an employer to show that the disadvantage was because of other reasons unrelated to the application of the PCP. The Tribunal held that Mrs Ryan was disadvantaged due to her failure to “seek entry into the Talent Pool”. Mrs Ryan knew that the Trust used the Pool as the first place to fill positions and that she could self-nominate to be in the Pool, yet she chose not to self-nominate. As such, the Pool was not the cause of her disadvantage. Mrs Ryan herself was.
Justification
The Tribunal further commented even if disadvantage been established, the Trust would have been able to rely on a justification defence.
The Tribunal found that the aim of the Pool was to identify “emerging talent” in the first seven bands and to maintain “existing talent” in the remaining bands. This was a legitimate aim.
The Tribunal then looked at proportionality. It identified five reasons why the PCP was a proportionate means of achieving a legitimate aim:
The Pool did not stop anyone from entering it by reason of them belonging to a specific age group. It covered “the entire spectrum of ages and experience
The Trust used an age-neutral entry requirement for those wishing to get into the Pool: they had to exceed expectations.
Even without meeting the above requirement, they could enter the Pool by self-nominating - another age neutral route.
The Trust would review the Pool twice a year to ensure fair representation.
The Trust had in place Equality Impact Assessments and continually looked at representation in the Pool on the basis of characteristics. Any noticeable impact on age could be explained by the points raised earlier by the Trust e.g. people did not self-nominate.
For the above reasons, the Tribunal dismissed Mrs Ryan’s claim.
The judgment is available here.
Mrs Elizabeth Ryan v South West Ambulance Services NHS Trust: 1400628/2018