Ms Rainbow, aged 61, was employed as a teacher by Milton Keynes Council. She had 34 years’ teaching experience and was on one of the uppermost pay scales. Ms Rainbow reduced her hours by 50%.
Subsequently, a teaching vacancy arose within the school for a year 3 class teacher. The job advert stated that the vacancy “would suit candidates in the first five years of their career”. Ms Rainbow requested an application pack, but was told to send in a letter of application only. Unlike other candidates, she did not receive an application form, job description or person specification.
Ms Rainbow was not short-listed for the position and was told that she did not address planning and assessment in enough depth. The successful candidate had about four years’ teaching experience and their salary was approximately £7,000 less than the full-time equivalent for Ms Rainbow.
Ms Rainbow brought claims for indirect age discrimination against the council in relation to both the application process and the decision not to shortlist or appoint.
The tribunal concluded that the job advert constituted indirect age discrimination. It was a criterion that potentially put persons over 60 at a disadvantage.
The tribunal found that the reasons given by the council in its rejection letter were “ungracious and inaccurate”. The true reason for the rejection was, in fact, cost. The decision to appoint someone in their first five years of practice constituted a provision, criterion or practice that potentially disadvantaged someone in Ms Rainbow’s age group and, in fact, did so.
The council put forward a justification defence, arguing that the school’s financial constraints should be taken into account. This was rejected by the tribunal because the evidence was unsatisfactory. The school did not put forward any detailed evidence that it could not afford to employ Ms Rainbow.
- The advert made clear the council’s intention to look for a certain level of experience and its behaviour demonstrated that a bona fide shortlisting exercise had not been carried out in relation to Ms Rainbow.
- Employers can invoke costs as a defence so long as it is not the only factor and must provide evidence they were compelled to act in a discriminatory way. Here, the council merely asserted that cost was a factor, but did not show the tribunal the school’s accounts or that other financial strategies had been considered to achieve the same or similar savings.
What you should do
- In recruitment adverts, consider whether it is necessary to insist on a level of experience. If it is, you should either be able to demonstrate that you are flexible about this criterion, or that you are justified in applying it.