Section 19 of the Equality Act states that it is indirect discrimination to apply a provision criterion or practice (PCP) relating to a protected characteristic, such as age, unless the employer can justify it. In Ryan v South West Ambulance Services NHS Trust, the Employment Appeal Tribunal (EAT) held that, when considering indirect discrimination, tribunals must distinguish between group and individual disadvantage.

The claimant’s union, Managers in Partnership, instructed Thompsons to act on its behalf. 

Basic facts

Ms Ryan, who had worked for the Trust since 1991, was told in early 2017 that her role as Education Business Manager on managerial band 8a had become redundant. After applying unsuccessfully for the role of Learning and Development Manager on the same banding as her old job, she accepted the more junior position of Learning and Development Officer at band 7. By this stage she was in her mid 60s.

In addition to the banding system, the Trust operated a Talent Pool (TP) to identify and develop future leaders within bands 1 to 7 and to retain existing leaders at band 8a and above. This system allowed the Trust to fill leadership and management vacancies quickly and efficiently.

Ms Ryan was not in the TP but had been involved in its development. She was therefore aware that employees could gain access to it if they were graded as “exceeding expectations” through the appraisal system. If an employee felt they had been unfairly or wrongly graded at their appraisal meeting, they could appeal the decision. Alternatively they could self-nominate twice a year for inclusion.

Ms Ryan applied twice more for the post of Learning and Development Manager but was not considered because she was not in the TP. She brought a claim of indirect age discrimination on the basis that the TP put people in the 55 to 70 age group at a disadvantage. 

Tribunal decision

The tribunal found that the Trust had a PCP whereby they relied on the TP to fill managerial vacancies quickly which put employees in Ms Ryan’s age group at a disadvantage. For instance, employees aged 55 and below had a one in 34 chance of being in the TP while those aged over 55 only had a one in 73 chance.

However, it then went on to find that there was no causal link between the disadvantage suffered by Ms Ryan as an individual and the PCP.  Despite knowing about the practice and how it worked, she had not appealed against her appraisal of “meeting expectations” in March 2017; nor had she ever self-nominated for inclusion in the pool. The TP itself was not therefore the cause of her disadvantage but rather her failure to apply for entry to it. The tribunal found that Ms Ryan was an “underserving Claimant” on this basis.

With regard to justification for the PCP, the tribunal held that the TP was a proportionate means of achieving the legitimate aim of identifying emerging talent in bands 1 to 7 and retaining existing talent among senior staff. 

EAT decision

Overturning that decision, the EAT held that, having established that there was a group disadvantage for those aged 55 to 70 and that Ms Ryan was a member of that group, it must follow that she had suffered a disadvantage because she was not in the TP.

It was then up to the Trust to produce evidence to show that the discriminatory effect of the policy had not had that effect on her. However, the Trust did not do that. All it did was to set out some of the ways in which Ms Ryan could have mitigated the impact of the discriminatory rule. There was no evidence to support the assertion that Ms Ryan was an “undeserving Claimant”.

With regard to justification for the rule, the tribunal had failed to critically evaluate the discriminatory effect of the TP and the reasons for it. As such, its decision on justification could not stand.