Ryan v South West Ambulance Services NHS Trust UKEAT[2019]
Companies are wise to focus on succession planning and talent retention. Promising managers are attracted to companies known for strong development opportunities, and a well-managed talent pipeline dramatically increases the odds that a company will appoint great leaders at the top.
What great employers also need to understand is the possible discriminatory consequence associated with talent management initiatives. Monitoring the demographics of a talent pool of high potential employees enables employers to analyse the potential discriminatory impact and to rectify where necessary or ensure the discriminatory impact is justified.
The case in summary
The South West Ambulance Services NHS Trust’s talent pool, which predominantly consisted of employees aged under 55, indirectly discriminated against an employee on grounds of age.
Facts
Mrs Ryan was the Trust’s Education and Business Manager and was 66 or 67 years old.
The Trust’s recruitment tool is called the ‘Talent Pool’. Its purpose is to identify and develop future leaders and managers and to retain existing leaders and managers. Those in the pool benefit from additional training opportunities and there is a limited need to advertise roles which can be filled quickly.
Employee can access the Talent Pool by:
- Being graded as “exceeding expectations” through the appraisal system,
- Appealing the appraisal grade, or
- Self-nomination for inclusion.
Mrs Ryan was graded as “meeting expectations”. She did not appeal the grade or self-nominate.
An opportunity for another role arose and Mrs Ryan was told that she could only apply if the Trust could not recruit someone through the Talent Pool. The Trust filled the vacancy through the Talent Pool and Mrs Ryan was not considered.
She complained to an employment tribunal that she was been indirectly discriminated against on grounds of age when she was not able to apply for promotion because she was not in the Talent Pool. Her claim was based on the fact that employees aged 55 and over were under-represented in the Talent Pool.
The decision
Whilst initially unsuccessful at the employment tribunal Mrs Ryan succeeded with her claim when she got to the Employment Appeal Tribunal (EAT).
The EAT found that Trust’s policy of recruiting from the Talent Pool had the effect of limiting the pool from which applicants for more senior roles within the organisation could be selected. While there were legitimate reasons for the policy, it had a particularly disadvantageous and prima facie discriminatory effect on one group of older employees of which Mrs Ryan was one ie proportionally fewer employees in that age group were in the Talent Pool. Because of this it was for the Trust to prove that Mrs Ryan’s exclusion was because of her performance, or other reason, and not because of the group disadvantage or the application of stereotypical assumptions about age. The upshot was that the Trust did not go far enough in its evidence to prove this.
The EAT found that the Employment Tribunal had been wrong in deciding that it was Mrs Ryan’s failure to apply to the Talent Pool which meant that she was not offered the opportunity to apply for the promotion opportunities. There were three routes to the Talent Group and the tribunal made no findings about what would have happened had Mrs Ryan appealed her appraisal mark or self-nominated. Without those findings, no-one could say that the consequence of her self-nominating or appealing her appraisal would have been that she would have been placed in the Talent Pool, and equally, no-one could say that it was her failure to do either of those things which prevented her being in it. There was also no evidence about why she was rated only as “meets expectations”. The Trust needed to prove that Mrs Ryan’s exclusion was because of her performance and it did not produce the evidence to establish that.
The EAT also considered that the objective justification argument was not made out because the Employment Tribunal did not critically evaluate the discriminatory effect of the indirectly discriminatory provision, and the reason and need for it. For example, it did not consider:
- Why did the position needed to be filled quickly?
- What was the actual discriminatory effect generally and on the claimant?
- Could lesser measures have achieved the same aim? Could membership of the Talent Pool have been a desired, rather than necessary, condition of eligibility?
Comment
HR should be mindful of inadvertent discrimination when building and managing talent. The law is complicated, but the key areas of focus are these:
- Study the demographics of your talent group and note any disproportionate representation issues, whether that is age, race, gender, or any other protected characteristic. Decide whether any action to address the any disproportionate representation needs to be taken.
- Be clear about the objectives of the talent group. What does the company wish to achieve?
- If there are issues of disproportionate representation within your talent group then consider whether the objectives of the group can be achieved in a less discriminatory way ie is there a more proportionate way of achieving the desired aim?
