A 61 year old teacher who was not shortlisted for a job advertised for candidates ‘in the first five years of their career’ was indirectly discriminated against on the grounds of her age. The Tribunal accepted that people in her age group were likely to have more than five years experience and, therefore, not to meet the criteria for the post. The employer failed to justify the discrimination the grounds of cost.
Ms Rainbow had 34 years’ teaching experience and had been working as a full time Class Curriculum Support and Supply Teacher at Falconhurst primary school since September 2002.
In 2006 the school began to experience financial difficulties and asked Ms Rainbow to reduce her hours to two days a week. She reluctantly agreed on the understanding that if any additional supply teaching hours became available she would be given first refusal and that she would be told of any other suitable vacancies. Later that year a Year 3 post became vacant but the deputy head teacher allegedly told Ms Rainbow that the school wanted to appoint a younger (cheaper) teacher to the post.
When the vacancy was advertised (internally and externally) it was described as one which ‘would suit candidates in the first five years of their career’. Ms Rainbow nevertheless applied for it and raised her concerns about the wording of the advert and the intentions of the school with her union. The union representative told the school that he thought the wording indicated an intention to discriminate on the grounds of age and asked them to amend it and to give proper consideration to Ms Rainbow’s application.
In October 2006, the school told her that she had not been shortlisted for the post because she had not addressed certain key areas in sufficient depth in her application letter. Ms Rainbow lodged a grievance about, among other things, not having been shortlisted, which was rejected as was her appeal. She then claimed both direct and indirect age discrimination.
The tribunal dismissed her direct age discrimination claim on the grounds that the reason for the failure to shortlist her was not her age, but the fact that she was not in the first five years of practice (and therefore would cost the school more than the person whose departure had given rise to the vacancy). The successful applicant for the post was paid £24,660 whereas Ms Rainbow would have been paid £32,253.
However, she was successful in her claim of indirect age discrimination. The school’s decision to appoint a person in the first five years’ of practice was a provision, criterion or practice (PCP) which, although on the face of it applied equally irrespective of age, in fact put people of Ms Rainbow’s age at a particular disadvantage. Teachers of her age were likely to have more than five years’ teaching experience and the tribunal therefore accepted that she was in an age group that was disproportionately disadvantaged by the PCP.
The tribunal then had to consider whether the school was in a position to justify this indirect discrimination by showing that the PCP was a proportionate means of achieving a legitimate aim. Because the school had been defending the claim on the basis that it had made a fair and proper shortlisting decision, it had not put any evidence on justification to the tribunal.
Its claim that the higher cost of employing her was sufficient justification was hampered by the lack of evidence related to the finances of the school. The Tribunal gave examples of the kind of evidence they would have expected to see including evidence that the school’s budgetary position for the year in question or subsequent years was such that it could not afford to employ more senior staff; and that other strategies to improve its financial position had been considered and rejected. In the words of the Tribunal: ‘If cost is going to be put forward as a justification for otherwise discriminatory practice, the evidence should be such that the Respondent was more or less compelled to take the discriminatory decision for costs plus reasons’.
Implications for employers
The Tribunal in this case indicated an unwillingness to accept that cost alone could justify age discrimination, preferring the EAT’s reasoning in Cross and ors v British Airways plc 2005 [link], an indirect sex discrimination case, that costs can form the basis of objective justification, provided it is combined with other factors.
Rainbow v Milton Keynes Council. Bedford Employment Tribunal, ET Case No.1200104/07.