Ryan v South Western Ambulance Service NHS Foundation Trust

For indirect discrimination under Equality Act 2010, the individual claimant must suffer a disadvantage corresponding to that suffered by the disadvantaged group. Where group disadvantage is framed as a reduced likelihood of an outcome, a group member generally suffers that disadvantage without proving why the group is disadvantaged.

An employer may show that the claimant did not suffer harm from the PCP. It must, however, establish the factual basis for that conclusion. A tribunal cannot treat a claimant as an “undeserving” claimant merely because she did not pursue alternative routes, where there is no evidence that using them would have avoided the disadvantage.

Objective justification requires a demonstrated, critical balancing of the discriminatory impact against the employer’s need, including less discriminatory measures.

The claimant, aged 66 or 67, alleged indirect age discrimination after the respondent used a Talent Pool to fill two senior vacancies. Employees aged 55 to 70 were statistically less likely than younger employees to be members of that pool. The claimant was not a member and was consequently unable to apply for either vacancy.

The Employment Tribunal at Exeter dismissed the claim. It found group disadvantage but held that the claimant was an “undeserving” claimant because she had not appealed her appraisal rating or self-nominated for the Talent Pool. It also held that the PCP was justified. The claimant appealed on causation and objective justification.

1. Appeal allowed. The Tribunal erred in dismissing the indirect age discrimination claim on the basis that the claimant had not established individual disadvantage. The appropriate disposal was reserved for submissions under the accompanying order.

2. Under section 19 of the Equality Act 2010, the individual disadvantage must correspond with the group disadvantage. The case had proceeded on the basis that the group disadvantage was the reduced likelihood that employees aged 55 to 70 would be in the Talent Pool. The claimant was in that group and was not in the pool. On that formulation, she suffered the corresponding disadvantage and had established a prima facie case.

3. Essop permits an employer to prove that a claimant was not disadvantaged by the PCP in her individual case. That route depended on evidence. The Tribunal had no evidence, and made no findings, as to whether an appraisal appeal or self-nomination would have secured the claimant membership of the Talent Pool. Nor was there evidence why she had received her appraisal rating. It could not therefore conclude that her failure to use the two alternative routes, rather than the PCP, caused her exclusion.

4. The Tribunal also erred in its alternative finding of justification. It identified a legitimate aim and features of the Talent Pool, but did not critically evaluate and balance the discriminatory impact against the business need for filling these two posts only from the pool. It did not address the need for urgent appointment to each post, the absolute exclusion of non-members, or whether less discriminatory measures could achieve the aim. Its justification conclusion could not stand.

• Employment Appeal Tribunal: Allowed the claimant’s appeal from the dismissal of her indirect age discrimination claim.
• Employment Tribunal, Exeter: Dismissed the claim after a hearing from 16 to 18 January 2019; its reserved judgment and reasons were sent to the parties on 29 January 2019.