An employer’s progression policy could have disadvantaged older workers by asking for a PHD or equivalency, but it was justified. The age discrimination claim in this case would have failed anyway because there were no available promotion opportunities.
Facts
Mr Pipe joined the university as a lecturer in journalism, after a career in the media. He made various applications for promotion but was unsuccessful. He complained that the university’s progression framework required him to attain a PHD and that this was indirect age discrimination, in that people aged 55 to 59 were less likely to have a PHD. (His primary case, however, was that it also disadvantaged him on grounds of his ADHD and sleeping disorder.)
The Employment Tribunal found that the framework did not absolutely requite a PHD. It was more flexible than that. The policy was that candidates should be on a pathway to a PHD or an equivalent “enterprise” route. The Tribunal also found that the framework was justified in the circumstances. In any case, even if Mr Pipe had met the framework’s progression criteria, his applications would have failed anyway because there was no role for him.
Decision
The EAT thought the Tribunal had wrongly fallen into the trap of looking at what the progression framework required, when policies can be challenged even when they do not involve absolute requirements. The Tribunal had also failed to properly assess whether the framework put people aged 55 to 59 at a comparative disadvantage. However, the Tribunal was entitled to conclude that the framework (with its flexibility) was justified and that Mr Pipe’s application would have failed anyway given the lack of available roles. The appeal therefore mostly failed.
However, the case was sent back to the Tribunal in one respect: Mr Pipe claimed that he was deterred from putting in further promotion applications, and that this was discriminatory. Since the Tribunal had failed to deal with this, this aspect of the case would need to go back to them for further assessment.
The judgment is available here
Mr Simon Pipe v Coventry University Higher Education Corporation [2023] EAT 73, 18 May 2023