Elizabeth Ryan v South West Ambulance Services NHS Trust [2020] UKEAT/0213/19/VP; 6 October 2020

Summary

The EAT allows the claimant’s appeal and affirms that the statutory test for indirect discrimination requires ‘correspondence’ between the group and individual disadvantage and that to advance the ‘undeserving claimant’ defence requires evidence that the claimant’s actions actively caused the disadvantage.

Facts

Elizabeth Ryan (ER) was employed at South West Ambulance Services NHS Trust (the Trust) and was aged 67 at the relevant time. The Trust developed a recruitment tool which it called the ‘Talent Pool’ (TP), designed to identify future leaders at the Trust and to fill some vacancies with ‘limited need to advertise for and to interview candidates’. Due to the nature of the service the Trust provided, there was a degree of urgency in its recruitment process in order to maintain its effective operation.

The tribunal held that the Trust had a provision, criterion or practice (PCP) of only promoting managerial staff on the basis of their pre-exiting membership of the TP.

Employees of the Trust could gain entry to the TP in three ways:

1. by achieving a grade of ‘exceeding expectations’ at an appraisal meeting with their line manager;
2. by appealing their line manager’s decision if this grade was not reached, and being given that grade on appeal;
3. by self-nominating for inclusion to the TP during a twice-yearly window and the application being approved by an independent manager.

ER was not a member of the TP, although she was aware of its existence and had been involved in its development. She was given a ‘meets expectations’ grade during her appraisal; she did not appeal this grade or self-nominate in either of the application windows that year.

When a managerial position became vacant, the Trust decided to fill it immediately from the TP. When a second vacancy arose as a result of the first promotion, she expressed interest in it but was told that she could only apply if it remained unfilled through recruitment via the TP. The role was filled through the TP and ER was not considered for the position.

The TP statistics showed that there was a comparatively lower percentage of members of the TP in her age bracket compared with other age brackets. Although 12% of the Trust’s employees were in the 55-70 age bracket, only 6% of TP members were in that age group.

ER lodged claims at the ET including for indirect age discrimination.

Employment Tribunal

The Trust argued that the TP statistics did not reveal discrimination; they reflected the ‘normal generalised career path’ of their employees, including the need to build up experience in the 16 to 20 age group and the greater likelihood of people in ER’s age group ‘winding down’.

The ET was referred to Essop and others v Home Office (UK Border Agency); Naeem v Secretary of State for Justice [2017] UKSC 27; Briefing 830. Applying that case, the ET rejected the Trust’s submission, noting that ‘the reason for the disadvantage need not be unlawful in itself, nor under the control of the employer’.

However, Lady Hale in Essop [32] dealt with the argument of ‘undeserving claimants, who have failed for reasons that have nothing to do with the disparate impact’ of the PCP. She stated that ‘it must be permissible for an employer to show that an employee has not suffered harm as a result of the PCP in question’.

The tribunal decided that ER was aware of the TP, having been involved in its creation, and did not seek entry into it. It therefore held that there was ‘no causal link between the PCP and the disadvantage suffered by [ER]’.

It further held that the TP was a proportionate means of achieving a legitimate aim, its purpose being to provide candidates for rapid appointment in an emergency response organisation. It was deemed proportionate for reasons including that no age group was precluded and the TP was reviewed twice annually for fair representation, which it met in all other equality categories.

The ET therefore dismissed ER’s indirect age discrimination claim.

Employment Appeal Tribunal

ER appealed on two grounds; namely that the ET erred in concluding that:

1. there was no causal link between the PCP and the disadvantage suffered, and;
2. the PCP was objectively justified.

ER argued on the second point that the decision of the ET had been perverse i.e. that no reasonable tribunal, on a proper application of the evidence and law, would have reached that conclusion.

On the first ground, the EAT noted the necessity of ‘correspondence’ between the group and individual disadvantage in the statutory test for indirect discrimination. While the tribunal had found that the group disadvantage was the statistically lower likelihood of people in ER’s age bracket being in the TP, it had not found that the individual disadvantage was also the lower likelihood of being in the TP; rather it framed the individual disadvantage as a result of ER’s failure to apply to the TP.

The EAT noted that ER had in fact been considered for the TP through her appraisal meeting, but been graded lower than was required for entry.

The ET had also not considered that the Trust had presented no evidence to show what would have happened had ER tried to actively gain entry to the TP, through appealing or self-nominating (i.e. that she would have gained entry to the TP and therefore been considered for the roles). As it could not be said what would have happened, it could equally not be said that it was ER’s own actions or omissions that prevented her from being in the TP. This was an error.

To advance the ‘undeserving claimant’ argument, the Trust would have had to prove that it was in fact ER’s performance which had resulted in her not attaining the ‘exceeding expectations’ rating in her appraisal. Alternatively, the Trust could have proven that had ER appealed or self-nominated, she would have succeeded in being placed in the TP.

This evidence was not presented to the ET. The EAT reasoned that the TP policy had a prima facie discriminatory effect on people in her age bracket, a disadvantage to which which ER was also subject; but for the PCP ER would have been considered for the promotions.

In relation to the objective justification of the PCP, the EAT held that the ET had not conducted a critical evaluation of the impact of the policy on the affected group against the importance of the aim to the Trust. The EAT agreed with the ER’s appeal on the ground of perversity.

Comment

The EAT expressed concerns that issues had not been clearly articulated; the group disadvantage was expressed in different terms to the individual disadvantage asserted by ER. It criticised the parties for not identifying the correct issues. Practitioners need to ensure that the statutory test is being followed closely in their pleading of a case. It was not contended by the Trust either at first instance or on appeal that the mispleading should have in itself led to the dismissal of the claimant’s claims. The claimant may have been vulnerable to this argument, considering she was legally represented, highlighting the importance of properly pleaded claims.

This case also speaks to the need to present a thorough and careful analysis at each stage of the statutory test for indirect discrimination and the relevant defences. Had the Trust submitted evidence to show that ER’s performance led to her ‘meets expectations’ grade, or shown that the effect of the TP policy had been considered against the aim of the Trust, this case may have turned in its favour. Without this latter analysis, the EAT was open to conclude that the respondent had not justified the TP as a proportionate means of achieving a legitimate aim and that, but for the PCP, ER would have been considered for the roles.

Finally, the case demonstrates that employers must be very careful about the effect of their policies. The TP had been reviewed for compliance with equality objectives and it had been shown that its effect was statistically skewed. This should have put the Trust on notice for potential liability for a discrimination claim. Practitioners should advise employers to be vigilant in correcting for this and considering whether the policy is necessary, or whether other more proportionate alternatives are available.

This article was first published in the Discrimination Law Association (DLA) briefings, Volume 72, March 2021. 

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