The claimant worked for the respondent since 1991.  She continues to be employed by the respondent as a Learning and Development Officer.   She was born in 1950 and was 66/67 at the time of the matters complained of.

Between 2013 and 2016 the claimant was employed as the Respondent’s Education Business Manager on a managerial grade (Band 8A). The issue arose with the respondent’s ‘Talent Pool’ that had been established.   The respondent had a provision, criterion or practice of only promoting managerial staff who were in that Talent Pool.   The claimant’s case was that she was being indirectly discriminated against on the basis of age as a result of not being part of the Talent Pool.    There were three mechanisms for getting onto the Talent Pool list.  They were:

(1)  The Respondent’s Appraisal System - through a one-to-one meeting with the line manager.  If an employee were exceeding expectations, they could be placed on the TP list.

(2)  The employee could appeal the line manager’s assessment if it was not one of exceeding expectations and it would be examined by an independent manager.

(3)  Self-nomination when the employees are notified of an opportunity to do so.  That application would be considered by an independent manager.

The claimant did not meet the criteria as she was only rated as ‘meeting expectations’ nor did she apply when the self-nomination period was opened up.   The claimant still stated that there had been age discrimination on the basis that her line manager had discouraged her from seeking to advance her career as she would be approaching retirement.  The fact that the claimant was not on the TP exacerbated issues when it came to a redundancy process where she had been redeployed and then later when she was not considered for her line manager’s position that had become vacant.

The Employment Tribunal considered the case of age discrimination and found that there had been no causal link between the practice of having the Talent Pool (and its mechanisms) and any individual disadvantage suffered by the claimant.  The reason for this was based upon the fact that she had not realistically tried to get onto the Talent Pool list.  This decision was appealed to the EAT.

The EAT held that the ET had erred in concluding that there was no causal link. It had also erred in suggesting that the practice was objectively justified.   The reason for this is that the ET had concluded the claimant was an undeserving claimant as had been outlined by the Supreme Court in Esspo v Home Office and this in turn led to an error in its analysis of justification.  There had been a conflation of group disadvantage and individual disadvantage, yet these were different.   As a result, there was no proper analysis as to the individual disadvantage faced by the claimant and for that reason there was an error in law.  The appeal was allowed.

Practical Lessons

This case demonstrates another development on the law of age discrimination and what is meant by an objective justification.  The focus from the ET perspective was on the group setting yet did not go into the particularities such as the potential promotion being filled quickly and the effect on using the Talent Pool.

For this reason, there is a greater need to recognise the individual circumstances that could be affected and how it could relate to age rather than having a broad-brush effect when it comes to groups.
https://www.gov.uk/employment-appeal-tribunal-decisions/mrs-elizabeth-ryan-v-south-west-ambulance-services-nhs-trust-ukeat-0213-19-vp