Are Your Job Adverts Legal? - October 08
In the recent case of Rainbow v Milton Keynes Council a tribunal had to decide, amongst other issues, whether an advertisement for a teaching vacancy ‘in the first five years of their career’ constituted indirect age discrimination. The decision that it did was hardly surprising.
Ms Rainbow was a teacher aged 61 and employed by Milton Keynes Council at Falconhurst School as a Class Curriculum Support and Supply Teacher. She had many years’ teaching experience and was on the upper pay range.
She worked two days a week and wished to increase her hours. When a vacancy arose to teach Year 3, a class she had taught previously, she applied for the post.
The advert said that it would suit ‘candidates in the first five years of their career’.
It was accepted by the tribunal which heard the case that the Deputy Headteacher at the School said they would be looking to appoint someone at about the same salary level as the departing Year 3 teacher.
Ms Rainbow requested an application pack but was told to send in a letter only, which she did and which ran to some six pages. Other candidates were sent an application form and job description.
Ms Rainbow was not short-listed for the post. The school appointed a candidate with four years’ teaching experience and whose salary was £7,000 less than it would have been for Ms Rainbow in the post.
Ms Rainbow brought a claim for indirect age discrimination in relation to the decision not to shortlist her. The tribunal found that the School had made a decision to appoint someone in their first five years of experience. This was a disadvantage to someone in Ms Rainbow’s age group. It was likely that a teacher over 60 would have more than five years’ teaching experience.
The Council argued that they were justified in considering the financial constraints. The previous case of Cross & Others v British Airways plc said cost can be a factor in justifying discrimination if it is combined with other reasons.
However, the Council did not show detailed financial evidence why cost was so important and what, if any, steps had been taken elsewhere with regard to cost-constraints.
We would recommend that when advertising vacancies schools should consider the following:
• Aim for ‘neutral’ advertising, avoid mention of number of years teaching experience or anticipated salary;
• Draft a person specification which details what the school really needs;
• Refer internal candidates to the application process to ensure they receive identical information including the application form and any person specification or job description as an external candidate;
• Outside of the formal process, refrain from commenting on the vacancy or candidate, for example in the staff room or corridor, or outside of work;
• If the school wish to rely on cost as justifying a decision, it is imperative that the school consider costs in the whole and not look at the post in isolation from other budgetary constraints. At the present time, cost alone cannot be the sole reason for the decision taken if there is risk of a claim for age discrimination.
For further guidance on this issue please contact Alice Reeve at alice.reeve@rickerbys.com.
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