Discrimination in an employer’s recruitment process

Employer’s Talent Pool and Indirect Age Discrimination

The recent case of Ryan v South West Ambulance Services NHS Trust UKEAT/0213/19 made the Employment Appeal Tribunal consider whether an employer’s talent pool, could amount to indirect discrimination.

The Facts

The employer created a talent pool to assist with developing current employees. This talent pool would enable them to fill senior roles quickly with limited need to advertise roles, and also ensure they retained key employees.

The pool was aimed at employees within bands 1 to 7.

When the pool was introduced Mrs Ryan was employed in a band 8a role, and following her appraisal chose not to self-nominate herself to be placed into the talent pool.

Later Mrs Ryan became aware of another band 8a role but was told that the role was only available to those in the talent pool. She was informed she would only be able to apply if the employer was unable to recruit through the talent pool process. An employee from the talent pool was subsequently selected for the role and Mrs Ryan was not afforded the opportunity to apply.

Mrs Ryan issued a claim for indirect age discrimination, as she had been overlooked for a promotion by not being in the talent pool. She also claimed that the talent pool under-represented employees aged 55 or over.

Employment Tribunal Decision

Mrs Ryan’s claim was dismissed by the Employment Tribunal on the basis that, whilst it accepted there was a higher chance of an employee under the age of 55 being in the talent pool, this had nothing to do with the reason Mrs Ryan had been unable to apply for the role. The Employment Tribunal found that as Mrs Ryan had failed to self-nominate herself for the talent pool, this was the reason she was unable to apply.

Appeal to Employment Appeal Tribunal

Mrs Ryan appealed the decision of the Employment Tribunal.

The Employment Appeal Tribunal disagreed with the Tribunal decision and found that Mrs Ryan had been indirectly discriminated against.

It was decided that Mrs Ryan had suffered a disadvantage because she had been unable to apply for two promotions, which meant she lost the opportunity of a pay increase and the status which would have come with either of those roles, had she been successful.

Overall, the Employment Appeal Tribunal found that, whilst the employer had a legitimate reason for the talent pool, it did disadvantage and discriminate against employees who were 55 and over.

Summary

The case highlights the importance of ensuring your recruitment policy is not discriminatory. No doubt the Trust did not consider they were doing anything wrong, and perhaps reasonably believed that, as Mrs Ryan had failed to self-nominate herself for the pool, there could be no claim for discrimination. However, the Employment Appeal Tribunal found that it was unclear whether Mrs Ryan would have been placed into the talent pool even if she had self-nominated herself. Therefore, the employer could not raise this as a defence.

If you are considering putting a recruitment policy in place or wish to have your current policy reviewed to ensure that you are not inadvertently operating a discriminatory policy please do not hesitate to contact us.

Case name: Ryan v South West Ambulance Services NHS Trust