Article / 23 Oct 2020

Are older employees disadvantaged by recruitment restrictions?

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Gateley Legal

What was the issue in the case of Ryan v South West Ambulance Services NHS Trust?

Employers should not indirectly discriminate against employees on grounds of age. This means any selection criteria or policy that has the effect of disadvantaging employees of a particular age group, may be challenged. In responding the employer may be to show that there was no disadvantage or that policy was justified. In the case of Ryan v South West Ambulance Services NHS Trust it was highlighted that statistical evidence of the disadvantage may be a key feature in such cases.

What were the facts of the case? 

Mrs Ryan, who was 66 years of age, had been forced to change her managerial role as part of a restructure. She complained that she had been unable to apply for two alternative posts as she had not been placed in the ‘Talent Pool’ that the employer had created in order to fill vacancies more easily. She claimed that she had been subject to indirect age discrimination as one in 34 employees aged below 55 had been placed in the Talent Pool whilst only one in 73 employees aged 55 to 70 had been.

What decision was reached by the EAT?

The Employment Appeal Tribunal held that a Tribunal had been wrong to dismiss the claim on the basis that the reason was Mrs Ryan’s failure to apply to be in the Talent Pool. The statistical disadvantage had been shown and from that there followed the individual disadvantage that Mrs Ryan had been prevented from applying for the two posts. The arguments regarding the steps she could have taken to get in the Talent Pool were more about her reducing the impact of the discriminatory effect of the rule.

Key takeaway point

Can the employer still establish that the policy was justified?

The employer may still be able to establish that the recruitment policy was justified. That would involve balancing whether the discriminatory impact was proportionate given the legitimate aim of the employer. In practice consideration would need to be given to whether there was a need for the positions to be filled quickly and whether any lesser measures could have achieved the same for example by providing that membership of the Talent Pool was a desired rather than necessary condition of eligibility.

Do you require more information regarding this case?

To discuss any points raised in this case or any other information regarding older employees disadvantaged by recruitment restrictions please contact our expert listed below.