Ms Rainbow qualified as a teacher in 1972 and is aged 61. She worked for a school in Milton Keynes and was employed on one of the highest pay-scales for teachers. In April 2006, the school began to experience financial difficulties and the headteacher asked Rainbow to consider reducing her work to two days a week. The headteacher agreed that if Rainbow accepted a reduction in her working hours she would be informed of any future positions in the school and that she would have an option on all supply cover days.
On this basis, Rainbow signed a new contract. In September and October, however, most supply work went to external agencies. When Rainbow queried this with the headteacher, she said she was told that she was too expensive to employ. In October 2006, a full-time post became available at the school. The school placed an advertisement for the position stating that it “would suit candidates in the first five years of their career”.
Rainbow applied for the position but her application was rejected without interview. She brought an employment tribunal claim alleging direct and indirect age discrimination in relation to the school’s failure to provide her with supply work, and in relation to the terms of the job advertisement and the school’s failure to consider her for the vacant position.
The tribunal found that the school had not directly or indirectly discriminated against Rainbow in relation to the allocation of supply work to an external agency. This was because the supply teacher could be of any working age.
However, in relation to the job ad and vacant position, the tribunal found that the school had indirectly discriminated against Rainbow. It said that the decision to appoint someone in their first five years of teaching experience was a provision, criterion or practice which disadvantaged Rainbow’s age group.
Further, Rainbow did actually suffer disadvantage by not being shortlisted for the position. The tribunal rejected the school’s argument that the discrimination was justified due to the cost of employing Rainbow on the basis that the evidence supporting this argument was “most unsatisfactory”.
The tribunal said that if cost is going to be put forward as a justification, the evidence should be such that the school was more or less compelled to take the discriminatory decision for “costs plus” reasons. By “costs plus” reasons, the tribunal was referring to the approach taken in an earlier case that “economic grounds (which include cost) can properly be a factor justifying discrimination if combined with other reasons”.
Although only at employment tribunal level, this case raises interesting issues in the age discrimination arena. As far as job ads are concerned, employers should give careful thought to whether it is necessary to stipulate a specific level of experience and, if so, that they are able to justify it.
This case also highlights the importance of concrete evidence to support a justification argument. It will not be enough to simply assert a reason for the treatment.
Where cost is a factor in the treatment it appears employers can rely on this so long as it is not the only factor and so long as they can provide firm evidence that they were compelled to act in a discriminatory way.
Nicholas Jew, partner, DLA Piper