Ryan v South Western Ambulance Service NHS Foundation Trust

Indirect discrimination requires correspondence between the group disadvantage and the individual disadvantage, but not an explanation of the reason for that group disadvantage. Rather than require a claimant to prove why the group is disadvantaged, tribunals must first identify the group disadvantage and then ask whether the claimant suffered the same disadvantage. A respondent may nevertheless rebut that correspondence by proving there was no causal link between the PCP and the claimant's disadvantage. Tribunals must also carry out a rigorous proportionality analysis when assessing justification.

The claimant, a long‑serving employee, alleged indirect age discrimination after she was not considered for two promotions because the employer recruited from an internal "Talent Pool". An Employment Tribunal in Exeter dismissed her claim, concluding she was an "undeserving claimant" as described in Essop v Home Office, because she had not used available routes to join the pool. The claimant appealed to the Employment Appeal Tribunal. The central question before the EAT was whether the ET erred in law in its causal analysis between the provision, criterion or practice (PCP) and the individual disadvantage and whether the ET’s justification assessment was adequate.

1. The appeal is allowed. The ET erred in law in its analysis of causation and in its justification assessment. (Disposition.)

2. Indirect discrimination requires first identifying the group disadvantage and then establishing correspondence between that group disadvantage and the individual disadvantage. A claimant need not prove the reason for the group disadvantage. However, correspondence must be shown. The EAT follows and applies the principles in Essop v Home Office (see paras [31]–[36]; applied at paras [55]–[66]).

3. A respondent may rebut the correspondence by showing there was no causal link between the PCP and the individual disadvantage. That is the proper meaning of the "undeserving claimant" concept. But a respondent must adduce evidence to show why the individual was not disadvantaged by the PCP. It is insufficient to infer non‑causation from the mere existence of alternative routes without evidence of what would have happened. The ET made that error here. (See paras [62]–[69].)

4. On the facts, the claimant established a prima facie case of indirect age discrimination because the PCP (recruiting from the Talent Pool) produced a statistical group disadvantage (lower likelihood of membership for age 55–70) and the claimant suffered the corresponding individual disadvantage (not being in the pool and therefore not considered for two roles). The ET should have found a prima facie case and then allowed the respondent the opportunity to rebut causation with evidence. (See paras [63]–[66]; [68].)

5. The ET’s alternative finding on justification was inadequate. A tribunal must carry out a critical evaluation and balancing exercise when considering whether a PCP is a proportionate means of achieving a legitimate aim. The ET’s reasoning on proportionality lacked sufficient critical analysis of need, suitability and less intrusive alternatives. The justification conclusion cannot stand. (See paras [71]–[75].)

6. Remedies and consequential directions were left for further submissions and order. The EAT will invite submissions on disposal. (See para [76].)

• Employment Appeal Tribunal: allowed the appeal and remitted issues of remedy and consequential orders to be the subject of further submissions. (Judgment handed down 06 October 2020)
• Employment Tribunal (Exeter): original hearing 16–18 January 2019; judgment reserved and sent 29 January 2019 (dismissed the indirect age discrimination claim).