Games v University of Kent (Age Discrimination)

For indirect discrimination under Equality Act 2010, proof of group disadvantage does not depend on statistics. Evidence from the claimant or others sharing the protected characteristic may establish disadvantage, but the tribunal must evaluate that evidence.

Whether a provision, criterion or practice causes particular disadvantage is assessed when it is applied. An employer cannot answer an established disadvantage by saying that the claimant could have avoided it through different conduct at an earlier time.

Justification requires a structured assessment of whether the employer’s real need is pursued by means that are appropriate and no more than necessary. A tribunal must explain its evaluation of material evidence and alternatives.

The claimant, who was over 56, applied for a full-time architecture lectureship. The University required applicants to hold a PhD and rejected his application at the shortlisting stage because he did not have one.

An Employment Tribunal dismissed his indirect age-discrimination claim. It held that the claimant had not proved group disadvantage and, alternatively, that the PhD requirement was justified by the University’s research aims.

The claimant appealed on the basis that the Tribunal had treated statistics as decisive, relied on his past opportunity to obtain a PhD, and failed adequately to reason its proportionality conclusion. The central issues were particular disadvantage under section 19 and whether the requirement was a proportionate means of achieving a legitimate aim.

1. Appeal allowed. The Employment Tribunal erred in law and the claim was remitted to a freshly constituted Employment Tribunal.

2. Following Chief Constable of West Yorkshire Police v Homer, [2012] ICR 704, section 19 does not require statistical proof of comparative group disadvantage. Statistics may be important, but a claimant’s evidence, and evidence from others in the protected group, may suffice. The Tribunal had considered only the statistics and had not evaluated the claimant’s evidence that older applicants were disadvantaged. That was an error of law.

3. Particular disadvantage must be assessed when the provision, criterion or practice is applied. If it then disadvantages the claimant and the relevant age group, it is no answer that they could have acquired the required qualification earlier in life. The Tribunal’s references to the claimant’s choice not to undertake a PhD and to his earlier unsuccessful application indicated that it had probably adopted the incorrect contrary approach.

4. Justification under section 19(2)(d) of the Equality Act 2010 requires a structured proportionality assessment. The employer’s objective must answer a real need, and the means must be appropriate and no more than necessary. The Tribunal identified a legitimate aim, but did not address the claimant’s evidence that a PhD was not necessarily essential for the post or make findings on whether an absolute PhD requirement was necessary. Its conclusory reasoning was not Meek-compliant.

5. The Tribunal had not confused direct and indirect discrimination. It was entitled to require identification of the relevant age group. Its failure expressly to cite sections 23 or 136 was not, by itself, an error of law. The EAT could not determine the underlying factual issues and therefore remitted the matter for a fresh determination.

• Employment Appeal Tribunal: allowed the claimant’s appeal and remitted the indirect age-discrimination claim for a fresh hearing: [2014] UKEAT 0524_13_1407.
• Employment Tribunal, Ashford: judgment dated 10 July 2013 dismissed the claim of indirect age discrimination.