The EAT has recently overturned an ET decision that a senior NHS manager had not been discriminated against on the grounds of age when she failed to secure two promotions because she was not a member of the respondent NHS trust's 'talent pool'.

Many trusts see it as a key responsibility to promote talented managers and to retain successful ones. The trust in this case had a 'talent pool' to meet this objective, which it operated as 'a diversion' from Agenda for Change.

  • There were three ways into the 'talent pool'. A score of 'exceeds expectations' in appraisal, a successful challenge to an appraisal if you initially scored below that, or successful self-nomination where a member of staff could put their name forward twice a year.
  • The claimant was in the 55-70 age group. Statistics showed 12% of trust staff, or 1 in 8 were in that group. However, that age group comprised only 6%, or 1 in 17 of the 'talent pool'. The ET found a group disadvantage based on those figures.
  • The claimant's case related to two potential promotions above her band 7. The respondent appointed to both roles directly out of their 'talent pool'. She alleged a reduced likelihood of being in the 'talent pool' due to her age.
  • However, although they accepted the group disadvantage, the ET found that, because she had not appealed her appraisal and had not self-nominated, she had not suffered an individual disadvantage and so had not established indirect age discrimination.

The EAT overturned this decision on appeal and held that the ET had not been entitled to look at the fact that she had not appealed the appraisal or self-nominated and had not properly followed the Supreme Court's reasoning on indirect discrimination in Essop/Naeem. However the EAT also criticised the legal representatives for not being at all clear about the basis of the case they were presenting to the ET, which they felt had contributed to the incorrect decision.

Having found that the group disadvantage was a reduced likelihood of being in the 'talent pool' due to age, the ET should have clearly found that this was also the individual claimant's disadvantage. No further enquiry was required, as that should have been enough to establish indirect discrimination, unless the respondent had a justification defence.

The respondent did succeed with a justification argument in the ET, based on the need to promote talented staff and retain experienced staff. However the EAT overturned this decision as well, pointing out the lack of evidence that had been available for the ET to reasonably reach this conclusion.

The decision is notable for explaining in clear terms how an indirect discrimination claim 'works'. However, the most important takeaway for healthcare clients is how easy it can be to discriminate when you depart from Agenda for Change, even if everything you are doing is well intentioned. The best way to avoid this is to obtain advice about equality provisions before implementation of such schemes, and to monitor any unintended equality impacts on a regular basis.

Ryan -v- South West Ambulance Services NHS Trust [2020] UKEAT 0213_19_0610

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.