280: Can recruiting from a ‘talent pool’ be deemed indirect age discrimination?

Indirect age discrimination occurs where a provision, criterion or practice (PCP) places employees of a certain age group at a disadvantage and the particular claimant at an individual disadvantage. However, employers can justify age discrimination if the PCP can be shown to be a proportionate means of achieving a legitimate aim. In Ryan v South West Ambulance Services Trust, the EAT has ruled that a ‘talent pool’ set up to develop and retain high-performing staff which consisted mainly of employees aged under 55 indirectly discriminated against an employee on grounds of age.

The South West Ambulance Services NHS Trust used a ‘talent pool’ to identify, develop and retain high-performing staff. There were three ways into this talent pool: an appraisal scoring of ‘exceeds expectations’; a successful appeal to that appraisal score; and successful self-nomination for inclusion. Ms Ryan, who was aged 66, had an appraisal which concluded that she was ‘meeting expectations’. She did not contest this and did not self-nominate for inclusion in the talent pool. She subsequently wished to apply for two roles but was told that candidates were being sourced from the talent pool and that she could only apply if the roles remained vacant, which they did not.

Ms Ryan alleged that the failure to allow her an opportunity to apply for the roles because she was not in the talent pool amounted to indirect discrimination on the grounds of age. This was because the talent pool disproportionately favoured staff aged under 55. Although 12% of the Trust’s employees were aged between 55 and 70, only 6% of the talent pool fell into that age bracket.

Given these statistics, the Employment Tribunal accepted that there was a group disadvantage affecting employees aged 55 and above. However, the Tribunal held that Ms Ryan had not suffered an individual disadvantage because she had not appealed her appraisal or failed to self-nominate for the talent pool. The Tribunal also held that the policy of recruiting from the talent pool was justified as a proportionate means of achieving the legitimate aim of succession planning, by providing partially pre-approved candidates for short-term appointments and secondments which could be needed in an emergency response situation. Ms Ryan’s claim therefore failed.

On appeal, the EAT overturned this decision, ruling that the Employment Tribunal had been wrong to conclude that any personal disadvantage suffered by Ms Ryan was caused by her own inaction rather than the Trust’s policy. Having found that there was a group disadvantage due to a reduced likelihood of being in the talent pool because of her age bracket, the Tribunal should have found that this was also to her individual disadvantage. The arguments about the steps she could have taken to get into the talent pool were more about her reducing the effect of the discriminatory policy.

The EAT also overturned the Tribunal’s decision on justification because this had not been based on sufficient evidence. For example, the Tribunal had failed to carry out a critical evaluation of the general discriminatory effect of the talent pool, or precisely why positions might need to be filled quickly and whether less discriminatory steps could have achieved the same aim.

This case illustrates that once group disadvantage has been shown statistically in an indirect age discrimination claim, the corresponding individual disadvantage can follow from that, although employers may still be able to establish that the policy was justified. This case also highlights the importance of ensuring that schemes and policies are monitored and reviewed regularly to ensure there are no unintended discriminatory consequences. If there is a discriminatory impact, it is important to consider whether the relevant business objective can be achieved through other means.