Mr Smith submitted an application under the Fire Board’s temporary promotions policy for a temporary promotion to cover a Watch Manager (a more senior position than the one then held by Mr Smith).  The criteria which the Fire Board applied in order to select for temporary promotion included development needs.  Mr Cree was preferred to Mr Smith for the temporary promotion on the basis that Mr Cree had more developmental needs than Mr Smith.  Mr Smith brought a claim arguing that this policy indirectly discriminated against someone on the grounds of age.  He identified the age group which was disadvantaged as being those between 45 and 55 years old. 


His claim failed both because the Employment Tribunal considered that he had not demonstrated that the Fire Board’s policy did disadvantage this particular age group and because the Fire Board was able to justify using this criterion.

The Employment Tribunal was critical of the scant statistical evidence on which it was being asked to judge disparate impact. 

The approach of the Tribunal is interesting in that it shows that the Tribunal will not necessarily be prepared to accept basic assumptions such as younger workers are more likely to have greater developmental needs on the basis that they are likely to have been in the service for shorter periods.  It does highlight an evidential problem for many Claimants in pursuing indirect age discrimination claims and a fruitful approach for employers to consider in combatting such claims. 

In this case, the Tribunal, in any event, held that the Fire Board had successfully justified the use of the developmental needs criterion and thus representing a proportionate means of achieving a legitimate aim.  The Fire Board clearly had a legitimate aim in the development and maintenance of skills within the Fire and Rescue Services, particularly in light of the large numbers of skilled personnel retiring at present.  The Tribunal was satisfied that taking into account developmental needs in filling temporary positions, so that employees could acquire the skills and experience from promotion, was a proportionate means of achieving this aim.

Smith v Strathclyde Fire Board ET (Scotland)

Case No. S107290/07