UK: restricting recruitment to internal 'talent pool' could be discrimination

Employers should assess the potential for indirect discrimination claims when deciding to limit access to certain benefits or opportunities to a particular pool of employees.  Where this puts a protected minority group at a disadvantage even inadvertently, an employer will need to be able to show that its policy was a proportionate means of achieving a legitimate aim.

In Ryan v South West Ambulance Services NHS Trust, the employer created a 'talent pool' consisting of employees with top appraisal grades and those whose self-nomination was accepted.  The idea behind the pool was to identify future leaders and managers who would benefit from additional development opportunities and it was used as a first resort to fill internal vacancies quickly.  In practice the pool included a significantly lower percentage of employees aged 55-70 than were in the whole workforce and therefore this age group suffered a disadvantage. The claimant suffered this same disadvantage as she was within the age band and not in the talent pool, and was therefore prevented from applying for two vacancies at the same level as her current role.

The EAT held that this was indirect age discrimination.  The employer had failed to show that the claimant would have been put in the talent pool had she self-nominated or appealed her appraisal grade, and therefore it could not be said that it was her failure to do those things that had prevented her from being in it. It had failed to prove that the discriminatory effect of the rule was not at play.

The employer had also failed to show that the use of the policy was justified.  This would have required the employer to show that the two positions needed to be filled quickly and that this could not have been achieved by less discriminatory means, for example by allowing applicants from outside the pool where they had previously interviewed for the role and were on the same pay band.