Making redundancies? Watch the talent pool

The Employment Appeal Tribunal confirmed that an employer’s policy to promote only from their ‘talent pool’ was indirectly discriminatory because older workers were significantly under-represented in that Talent Pool. 

Mrs Ryan’s employer (South West Ambulance Services NHS Trust) had created a ‘talent pool’ of high-performing employees to fill vacancies internally, reducing the need to interview external candidates and allowing roles to be filled quickly. This sounds like a good idea in theory, however in practice, this meant that older workers such as Mrs Ryan were excluded from this pool.

In transpired that two managerial roles became available and the first was filled from the talent pool. Mrs Ryan could not be considered for this role as she wasn’t in the talent pool. Mrs Ryan expressed an interest in the second role, however,, she was told that she could only apply if the vacancy was not filled from the talent pool. The second role was later allocated to an individual from the Talent Pool.

On the face of it, it does not seem that there is an issue here. 

Mrs Ryan brought a claim of indirect age discrimination. Her claim was that by creating and promoting from their talent pool, the Trust operated an apparently neutral provision, criterion or practice that indirectly discriminated due to the under-representation of employees in her age bracket (55-70).

The EAT held that there was evidence to show that it was less likely that employees aged 55-70 would be in the talent pool, and this showed a group disadvantage. It was also stated that Mrs Ryan (in her mid-sixties) was also personally disadvantaged because she was not considered for roles which she otherwise would have been because her employer looked to fill vacancies from the pool. 

This is a warning shot to employers who need to understand that care is needed when considering the make-up of any talent pool for recruitment or promotion. Indirect discrimination can easily take place where there is a seemingly innocent practice, criteria or provision.

For more information or to speak with Roy Magara,  a specialist employment lawyer at Magara Law, please call 01869 325 883 or email roy@magaralaw.co.uk. Magara law is an employment law firm based in Bicester, Oxfordshire, and services clients nationwide.