When the Employment Equality (Age) Regulations 2006 were first introduced, there was much speculation as to whether job adverts, which seek a specific number of years experience, could be discriminatory on grounds of age. Richard White considers a recent case on this issue.

Rainbow v Milton Keynes Council

Ms Rainbow was employed by Milton Keynes Council as a teacher. She was 61 years of age, with 34 years’ teaching experience, and was on one of the highest teacher pay scales.

A vacancy arose for a year three class teacher. The job advert stated that “the vacancy would suit candidates in the first five years of their career”. Ms Rainbow had experience of teaching year three and had even taught the particular class in question. However, Ms Rainbow was told that the school wanted to appoint someone who was on the same pay scale as the departing teacher. Ms Rainbow asked the school for an application pack but was instructed to send in an application letter only. Other candidates received application forms, job descriptions and person specifications.

Despite her wealth of experience, Ms Rainbow was not even shortlisted for an interview. The rejection letter stated that she did not address planning and assessment in enough depth. The person appointed to the role had four year’s teaching experience and their salary was around £7,000 less than the full-time equivalent would have been for Ms Rainbow.

The claim

Amongst other claims, Ms Rainbow brought claims in the employment tribunal for direct and indirect age discrimination in relation to the application process and the decision not to shortlist or appoint her to the teaching post.

Indirect discrimination exists where a person (‘A’) discriminates against another (‘B’) by applying a provision, criterion or practice (‘PCP’) which applies or would apply to persons not of the same age group as B but which: (i) puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons; and (ii) puts B at that disadvantage.

In other words, an employer may have a practice which, on the face of it, applies to everyone. However, if the effect of that practice is to put persons of a particular age group at a disadvantage, then that will amount to indirect discrimination. It will then be up to the employer to justify that discrimination.

The decision

The treatment of Ms Rainbow was not direct age discrimination as age was not the direct reason for her failure to be shortlisted. However, the tribunal decided that both the job advert and the failure to shortlist Ms Rainbow for the teaching post constituted indirect age discrimination.

The tribunal found that the true reason for Ms Rainbow’s rejection was cost. The council’s decision to appoint someone in their first five years of teaching amounted to a PCP that potentially disadvantaged someone in Ms Rainbow’s age group. The tribunal recognised that “if you are over 60 you are likely to have more than five year’s teaching experience”.

As the council had applied a PCP which was indirectly discriminatory, it had to try and justify that discrimination. The council’s stated reasons for not shortlisting Ms Rainbow (ie. the apparent failure to address planning and assessment in her application letter) were regarded by the tribunal as “ungracious and inaccurate”.

Hence the council sought to argue that it was justified in indirectly discriminating on the basis of the school’s financial constraints. However, no detailed evidence was put forward as to why it could not afford to employ Ms Rainbow. Instead, the school simply asserted that cost was an issue. The tribunal was unimpressed by this argument and was clear that if cost was going to be used as a justification for indirect discrimination, the evidence should be such that the employer was more or less compelled to take the discriminatory decision for cost plus reasons.

Comment

The council’s approach to the recruitment process did not put it in a good light before the tribunal. The tribunal believed that the council did not adopt an open-minded approach to the application process, which was evidenced by Ms Rainbow being told that the school wanted to appoint someone at the same pay grade as the departing employee, and by treating her entirely differently during the application process. This made it extremely difficult for the council to argue that a full and fair application process had taken place.

Once the tribunal had found evidence of indirect discrimination, the council’s justification defence was never likely to succeed, as no cogent evidence was presented to explain why cost was a factor which the council was entitled to rely on to justify the discrimination.

The tribunal also referred to a previous case on justification and stated that costs should not be the only reason for justification. If an employer wishes to rely on cost as a factor for justifying the discrimination, it should not be the sole factor.

Employer’s can learn several lessons from this case:

• A specific level of experience should only be used when advertising a vacancy if it is necessary to do so. The fact that the employer would prefer to employ someone with say, three year’s experience will not be enough to justify any discrimination.




• If this type of criterion is used by employers, they should be able to show that they used it flexibly. In other words, if candidates with more or less experience apply, then their applications should be considered and only rejected for good reasons.




• Whatever the justification arguments used by an employer, they should be backed up by clear evidence on which the decision was based. Cost alone is unlikely to amount to a good enough reason to justify indirect discrimination.

Richard White is a specialist employment solicitor at Withy King. For further advice on this topic, please contact Richard on 01225 352 921 or email [email protected]