Ryan v South West Ambulance Services NHS Trust (AGE DISCRIMINATION) [2020] UKEAT 0213_19_0610

EAT
Ryan v South West Ambulance Services NHS Trust (AGE DISCRIMINATION)
[2020] UKEAT 0213_19_0610 · 2020-10-06
[20]“20. As Mummery LJ explained in R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293 , [2006] 1 WLR 3213 , at [151]:
‘. . . the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group.’
He then went on at [165] to commend the three-stage test for determining proportionality derived from de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 , 80:
'First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective ?'
As the Court of Appeal held in Hardy & Hansons plc v Lax [2005] EWCA Civ 846 , [2005] IRLR 726 [31], [32], it is not enough that a reasonable employer might think the criterion justified. The tribunal itself has to weigh the real needs of the undertaking, against the discriminatory effects of the requirement . … 24 Part of the assessment of whether the criterion can be justified entails a comparison of the impact of that criterion upon the affected group as against the importance of the aim to the employer. That comparison was lacking, both in the ET and in the EAT. Mr Homer (and anyone else in his position, had there been someone) was not being sacked or downgraded for not having a law degree. He was merely being denied the additional benefits associated with being at the highest grade. The most important benefit in practice is likely to have been the impact upon his final salary and thus upon the retirement pension to which he became entitled. So it has to be asked whether it was reasonably necessary in order to achieve the legitimate aims of the scheme to deny those benefits to people in his position? The ET did not ask itself that question.” 38. In R (Tigere) v Secretary of State for Business, Innovation and Skills [2016] 1 ALL ER 191 , the Supreme Court again identified the need, when considering justification, for a Tribunal to both analyse the justification of the PCP and then carry out an analysis of the discriminatory effect of the relevant measure:
“It is now well established in a series of cases at this level, beginning with Huang v of State for the Home Dept, Kashmiri v Secretary of State for the Home Dept [2007] UKHL 11 , [2007] 4 All ER 15 , [2007] 2 AC 167 , and continuing with R (on the application of Aguilar Quila) v Secretary of State for the Home Dept, R (on the application of Bibi) v Secretary of State for the Home Dept [2011] UKSC 45 , [2012] 1 All ER 1011 , [2012] 1 AC 621 , and Bank Mellat v HM Treasury (No 2) [2016] 1 All ER 191 at 204 [2013] UKSC 39 , [2013] 4 All ER 533 , [2014] AC 700 , that the test for justification is fourfold: (i) does the measure have a legitimate aim sufficient to justify the limitation of a fundamental right; (ii) is the measure rationally connected to that aim; (iii) could a less intrusive measure have been used; and (iv) bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community?” (Tigere paragraph 33).” 39. The burden of establishing justification rests upon the Respondent. In Hardy & Hansons Plc v Lax [2005] IRLR 726 the following was said of the concept of justification of indirect discrimination (albeit in respect of the then applicable provisions of the Sex Discrimination Act 1975): “32. Section 1(2)(b)(ii) requires the employer to show that the proposal is justifiable irrespective of the sex of the person to whom it is applied. It must be objectively justifiable ( Barry v Midland Bank plc [1999] ICR 859 ) and I accept that the word “necessary” used in Bilka-Kaufaus [1987] ICR 110 is to be qualified by the word “reasonably”
. That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend. The presence of the word “reasonably” reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the employers' submission (apparently accepted by the appeal tribunal) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances. 33 The statute requires the employment tribunal to make judgments upon systems of work, their feasibility or otherwise, the practical problems which may or may not arise from job sharing in a particular business, and the economic impact, in a competitive world, which the restrictions impose upon the employer's freedom of action. The effect of the judgment of the employment tribunal may be profound both for the business and for the employees involved. This is an appraisal requiring considerable skill and insight. As this court has recognised in Allonby [2001] ICR 1189 and in Cadman [2005] ICR 1546 , a critical evaluation is required and is required to be demonstrated in the reasoning of the tribunal. In considering whether the employment tribunal has adequately performed its duty, appellate courts must keep in mind, as did this court in Allonby and in Cadman , the respect due to the conclusions of the fact-finding tribunal and the importance of not overturning a sound decision because there are imperfections in presentation. Equally, the statutory task is such that, just as the employment tribunal must conduct a critical evaluation of the scheme in question, so must the appellate court consider critically whether the employment tribunal has understood and applied the evidence and has assessed fairly the employer's attempts at justification. 34 The power and duty of the employment tribunal to pass judgment on the employer's attempt at justification must be accompanied by a power and duty in the appellate courts to scrutinise carefully the manner in which its decision has been reached. The risk of centerficiality is revealed in the cases cited and, in this field, a broader understanding of the needs of business will be required than in most other situations in which tribunals are called upon to make decisions. 35 The employment tribunal, at para 9, referred to Allonby and stated:
“It is understood that it was necessary to weigh the justification put forward by the [employers] against its discriminatory affect. Accordingly, it proceeded to consider the matters on which the [employers] relied in order to refuse the applicant's request that the RRM job be done on a job share or part-time basis.” 36 I find nothing wrong with that general statement. Whether the correct test has been applied, and an analysis conducted with appropriate rigour, can in this case be considered only upon a detailed consideration of the reasoning of the employment tribunal …” (Emphasis added).
40. The Tribunal was also referred to the Equality and Human Rights Commission: Code of Practice on Employment (2011), (“the EHRC Code”), and in particular paragraphs 16.20 and 16.21 in relation to “Advertising a Job”:
“16.20 the practice of recruitment on the basis of recommendations made by existing staff, rather than through advertising, can lead to discrimination. For example, where the workforce is drawn largely form one racial group, this practice can lead to continued exclusion of other racial groups. It is therefore important to advertise the role widely so that the employer can select staff from a wider and more diverse pool. 16.21 Before deciding only to advertise a vacancy internally, an employer should consider whether there is any good reason for doing so. If the workforce is made up of people with a particular protected characteristic, advertising internally will not help diversified the workforce. If there is internal advertising alone, this should be done openly so that everyone in the organisation is given the opportunity to apply.”
The parties’ submissions Ground 1 Claimant 41. The Claimant submitted that once the Tribunal had found three significant matters, it should then, subject to the question of justification, have made a finding of indirect discrimination. Those three matters (the constituent elements of s.19(2)(a)-(c) EqA 2010) were: a. That the PCP was applied in this case (because the Respondent relied upon the TP to fill the two roles for which the Claimant was not considered) and; b. That the group disadvantage was established (because employees in the age group 55-70 were statistically less likely to be in the TP); c. That the Claimant suffered the disadvantage complained of (because, but for the PCP she would have had the opportunity to apply for the relevant posts); alternatively, because she was in the disadvantaged group and was statistically less likely to be in the TP and, in fact, was not in the TP. It was submitted that each element of the statutory test was met and the requisite causal link between the PCP and the disadvantage was established. 42. The Claimant submitted that the Tribunal’s conclusion that it was not the application of the PCP which put the Claimant at a particular disadvantage but her failure to appeal her appraisal mark or to self-nominate to the TP was the cause of her disadvantage, or, alternatively, broke the causative link between the PCP and the particular disadvantage, was an error. In respect of that submission the Claimant contended that: (a) The facts of the Claimant’s case and those of Essop were not analogous having regard to the PCP. The Claimant could only be said to be an underserving Claimant, in truth, on the facts of this case if, for example, she had had no interest in promotion. The examples given in Essop regarding an ‘undeserving Claimant’ were ill-suited to the facts of the present case. They would only have been truly analogous if the PCP or group disadvantage were framed differently, for example, if the PCP in this case were framed as an “absolute” requirement to gain an exceeding expectations mark, or a requirement to self-nominate. It was not - it was framed in terms of reduced likelihood of being in the TP. That is different, for example, to an absolute requirement to sit or pass an exam; (b) The Tribunal’s conclusion involved the Tribunal in impermissibly going behind the PCP by essentially requiring the Claimant to establish why she was disadvantaged. It placed an additional and impermissible burden upon the Claimant. Further, it involved the Tribunal in making unsafe assumptions, such as an assumption that a member of the affected group could only be individually disadvantaged by the PCP if they appealed the appraisal marking or self-nominated and had still not gained access. However, there was no evidence before the Tribunal to support those conclusions or assumptions: it was not known why the statistics created the group disadvantage, and it was not known what would have occurred or been likely to occur if the Claimant had appealed or self-nominated. (c) If the group disadvantage was a lower likelihood of being in the TP, the Claimant too was at that disadvantage as she was in the relevant age group (55-70) and was not a member of the TP. (d) In the absence of evidence as to the reasons behind the statistics showing the disparate impact on the relevant age group, the Tribunal’s conclusion ran the risk of allowing potentially discriminatory reasons for that disparate impact to be perpetuated: for example, older employees might proportionately have been graded lower. (e) There was no finding made that an appraisal appeal or self-nomination would have granted the Claimant entry into the TP. If the Respondent sought to establish that the Claimant was an “undeserving Claimant” it was for the Respondent to show a lack of causal link between the PCP and the disadvantage suffered. In the absence as to findings on these two matters, it had not done so and the Tribunal’s conclusion could not stand. The Respondent 43. The Respondent contended that the Tribunal was fully entitled to conclude that the Claimant was an “undeserving Claimant” within the meaning of Essop and that that was clearly what the Tribunal had intended to convey in its Reasons at paragraphs 43-46. The Tribunal acknowledged that “at first blush” it appeared that the Claimant had suffered an individual disadvantage; however, on closer analysis, it had legitimately concluded that that was not the case because, despite knowing about the TP, she neither appealed her grading, nor self-nominated for the TP. 44. The Claimant failed to establish an individual disadvantage. She was well aware of the different routes into the TP and the purpose of the TP, which was a legitimate recruitment tool. It was submitted that it was ‘fanciful’ to suggest that people who fail because of their own conduct have suffered harm as a result of the application of the PCP: the Claimant’s position was fairly and properly analogous to the examples of ‘undeserving’ Claimants identified in Essop. Further, to suggest that it was necessary to show what would have happened if she had appealed or self-nominated was the equivalent of suggesting that in the exam candidate example in Essop, it would be necessary to show what score a candidate would have achieved if they had turned up to an exam when they did not do so. The Respondent contended that it was misconceived to suggest that the lack of evidence that the Claimant would have been accepted into the TP had she appealed her appraisal score or self-nominated to it because it was “not necessary or appropriate to guess or hypothesize” as to what would have happened had she done so - it was sufficient simply that she had not done so; at best all that could be said is that, had she done so, she would have been at or in the same disadvantage as the Group. Ground 2 45. The Claimant submitted that by accepting the undeserving Claimant argument advanced by the Respondent the Tribunal left a number of significant issues unaddressed and/or made a number of assumptions as to what would have occurred if the Claimant had self-nominated or appealed. The Tribunal did not identify whether a requirement to self-nominate or to appeal imposed upon the age group 55-70 in order to gain entry to the TP was something which was likely to apply to the same level to other age groups. Further, there was not an analysis of the known evidence, such as the fact that no one in the age group 55-70 had achieved entry to the TP via self-nomination, nor why that was. Similarly, the Tribunal did not build into its limited analysis the impact, if any of the Agenda for Change (referred to at paragraph 7 of the Reasons), nor the Statutory Code of Practice. The fair and critical analysis required in respect of justification was simply missing. 46. The Claimant submitted that the Tribunal did not properly consider whether the means chosen to achieve the Respondent’s objective were no more than necessary to accomplish it. It was submitted that the first two numbered points in paragraph 51 of the Tribunal’s reasons were not of probative relevance to the question of whether an apparently neutral PCP was no more than necessary. By definition, in a claim of indirect discrimination, the PCP will apply to all and in that sense, be apparently ‘neutral’. Further, it was submitted that the third numbered point did not add to the analysis: it was the existence of the TP itself which had to be proved to be no more than necessary and the availability of alternative routes to enter it did not address the question of whether the existence of the TP was necessary or not. The same criticisms were levelled at points four and five: they identified steps taken to monitor the impact of the TP, but given that the TP was found to have an indirectly discriminatory effect those matters did not set out how the data was analysed. For example, it was not clear what, if any, conclusions were reached as a result, and there was no analysis of those conclusions. Equally, there was no analysis of whether less discriminatory means to achieve the Respondent’s aim were considered, or could have been used. In addition, it was submitted that the evidence presented by the Respondent did not accord with the findings made in respect of paragraphs 51(iv) and (v). In particular, the evidence of bi-annual reviews was in truth merely evidence of an intention to hold such reviews: no evidence was adduced of any actual review having taken place. Similarly, there was no evidence of an equality impact assessment actually having taken place. 47. It was submitted that the analysis identified in points (iii) and (iv) of Tigere were wholly absent. Respondent 48. The Respondent contended that the analysis in Tigere did not fully import to the employment law context but that, to the extent that it did, the Tribunal’s analysis at paragraph 51 satisfied points (iii) and (iv). It was submitted that it was for the Tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the measure at stake. The Tribunal did so as set out in paragraph 51. The Tribunal properly considered the nature of the Respondent’s business and its needs and then carried out a balancing exercise in which it considered the fail safe mechanisms built into the TP and the review process. 49. It could not be said that there was no evidence justifying the conclusions set out at para. 51(iv) and (v). There was evidence of twice annual reviews within the grievance decision and oral evidence that a EAI was carried out. Discussion and conclusions Ground 1: The Tribunal erred in concluding that there was no causal link between the PCP and the disadvantage suffered by the Claimant 50. I am grateful to both counsel for their detailed and clear submissions and their frank and agreed statements as to what had occurred during the course of the hearing before the Tribunal. 51. I consider that one of the primary difficulties which arose in this case was that at the outset, the relevant group disadvantage and the relevant individual disadvantage were not sufficiently clearly articulated or reflected upon. I do not consider that responsibility for that can fairly be laid simply at the feet of the Tribunal decision makers. I return to this issue below. 52. For present purposes however, I record that it was agreed by counsel on appeal that at the hearing before the Tribunal both the parties and the Tribunal worked on the premise that the group disadvantage was the lower likelihood of members of the affected age group being members of the TP. (See paragraphs 22 and 24 of this Judgment above). However, the individual disadvantage asserted by the Claimant was that she was denied the opportunity from being considered/ was not considered for two opportunities for promotion and, therefore, lost out on the potential increase in pay and status she would have attained if she had been appointed to them. (See paragraph 37 of the Tribunal’s Reasons and paragraph 7.3 of the Claimant’s Claim). 53. Paragraph 43 of the Tribunal’s Reasons is important. The Tribunal found that “on the face of it” the PCP did put the Claimant, individually at the group disadvantage: she was not considered for the roles (para.43 of the Tribunal’s decision). Within the same paragraph the Tribunal again identified the group disadvantage as being a statistical lower likelihood of being in the TP. It concluded, however, that the Claimant did not actually suffer an individual disadvantage because it was not the application of the PCP which put the Claimant at that disadvantage, rather it was her failure to apply to the TP. (See paragraphs 43 and 46 of the Reasons set out at paragraphs 24 and 26 of this Judgment above.) 54. During the course of argument I drew counsel’s attention to paragraph 31 of the judgment in Essop (set out at paragraph 35 of this Judgment above) and gave time for them to consider that paragraph, particularly in the context of the way in which the claim was argued before the Tribunal. Both counsel agreed that the apparent approach set out by the Supreme Court is first to identify the relevant group disadvantage and then to consider whether the Claimant suffered that disadvantage and that there was a need for correspondence between the two. It was agreed that the present case had not followed that format: the individual disadvantage was identified; the group one was not, initially during case management, and then, when it was, it was formulated differently to the individual disadvantage. It was not contended before the Tribunal, or on appeal, that that, in itself, should have led to the dismissal of the Claimant’s claims. 55. I consider that the following important principles are to be derived from Essop, particularly paragraphs 31-33: (i) In claims of indirect discrimination such as a the present, both group and individual disadvantage must be established. (This is not a case where rights under Art 9 ECHR are engaged and where additional considerations may apply); (ii) Once group disadvantage has been established by a claimant, the individual claimant “has to show that he has been put at “that disadvantage”. “That disadvantage” is the same disadvantage that the group to which s/he belongs to is, or would be, put; there must be ‘correspondence’ between the two. (iii) It is not, however, necessary for the claimant to show the reason for the group disadvantage; all that is required is that there is a corresponding group and individual disadvantage (as to which see (iv) below). This is a complete answer to the assertion made (in that case, and to some extent in this) that one cannot know whether a claimant is at that disadvantage unless one knows the reason for it. (iv) The reason why a claimant does not have to show the reason for a group or individual disadvantage is to be found in the principles underlying the prohibition of indirect discrimination and the manner in which the statutory tort is constructed (see the above, particularly paragraph 30). (v) However, what is required by the language of the statute is “correspondence between the disadvantage suffered by the group and the disadvantage suffered by the individual.” This is important. To some extent, I regard this as the flip side of the coin on which ‘no need to show the reason for the disadvantage’ is stamped: the claimant does not have to show the reason for the disadvantage, but s/he must show that she has suffered a corresponding disadvantage to the group. (vi) It must be open to a Respondent to show that a particular claimant was not put at a disadvantage by the relevant PCP, or, in other words, to show that there was no causal requirement between the PCP and the disadvantage suffered by the individual. In practice, and on the facts, it may be easier to prove this if the disadvantage is defined in terms of actual achievement or occurrence of a particular event than if it is expressed in terms of likelihood of achieving that event or that event occurring. (vii) Similarly, if the reason for the disadvantage is known, it may be easier to prove the causal connection between the PCP and the disadvantage suffered, both for the group and for the individual. Proving that, however, is a matter of fact, not law. (Paragraph 33 of Essop ). 56. In a claim of indirect discrimination, real care and attention must be paid to how the disadvantage (both group and individual) in a particular case is framed. It must be clearly articulated, both at the group and the individual level. Failure to do so is likely lead, in my view, to many problems in the ensuing litigation. Further, two points arise which are relevant to the consequences of how the group and corresponding individual disadvantage are framed: (i) In general terms, if the disadvantage is expressed as a likelihood of a particular outcome in respect of a particular group, then any person in that group suffers that disadvantage. In other words, a disadvantage expressed as a likelihood of an outcome will generally affect more people. (See paragraph 31 of Essop and also the end of paragraph 32). (ii) If the disadvantage is framed in terms of achievement of a particular event, or, of an event occurring, only those who actually achieve that event or in respect of whom the event occurs will suffer the same disadvantage. 57. As noted above. the concept of an ‘undeserving Claimant’ arose from submissions made in the Essop case that if no obligation lay upon a Claimant to evidence the reason why a PCP put a group at a particular disadvantage, individuals who had, in truth, suffered no disadvantage as a result of the reasons leading to the group disadvantage, may be able to assert a valid claim. Put another way, the ‘undeserving Claimant’ refers to those individuals who are within the relevant group (sharing the relevant characteristic and therefore the group disadvantage) but who cannot, in truth, align themselves with that disadvantage as an individual because the reason why they are in the group has nothing to do with the disparate impact established. The Equality Act 2010 Statutory Guidance notes that the prohibition on age discrimination within the act is:
“… designed to ensure that the new law prohibits only harmful treatment that results in genuinely unfair discrimination because of age. It does not outlaw the many instances of different treatment that are justifiable or beneficial.” 58. It is clear from the judgment that the Supreme Court considered that it must remain possible for a Respondent to prove that there was not the relevant causal link between a PCP and an individual disadvantage. A Respondent may disprove, by reference to the relevant facts, the causal link between the PCP and the individual disadvantage in the Claimant’s case. Logically, this would require a Respondent to establish why a particular event occurred in the Claimant’s case. Alternatively, a Respondent may assert that the Claimant was not in a comparable situation for the purposes of s.23 of the EqA 2010: i.e., that there was or is a material difference between the Claimant and (potentially) both the group and others who did not share the relevant characteristic for the purposes of s.19. Finally, a Respondent could also seek to justify the disparate impact of a particular PCP. 59. I turn to consider how these principles apply in this case. 60. It is important to note that although the issues were identified by the Tribunal at paragraph 37 of the judgment, and had also been identified at a case management hearing, the group disadvantage was not clearly articulated: all that was stated, both in the reasons and case management summary was, “did the PCP put people of the age group 55-70 at a particular disadvantage when compared with persons who do not have this protected characteristic.”
This was problematic, not least because in her claim, the Claimant identified the group disadvantage in the following terms:
“the C contends that there is a group disadvantage amongst older employees as they are under-represented within the TP. The C is seeking further disclosure to prove this point but is anecdotally aware that the [TP] contains a disproportionately high number of younger employees.”
In the same document the individual disadvantage was asserted to be that the C was “denied the opportunity to be considered for two promotion opportunities and therefore potentially lost out on the pay and status she would have attained had these applications been successful.” 61. Consequently, the Tribunal considered a claim of indirect discrimination where the group disadvantage was expressed in different terms to the individual disadvantage asserted by the Claimant. This will not have assisted parties, or the Tribunal, in undertaking the correct analysis of the claim and issues. It would not, in my view, be fair to criticise the Tribunal who determined the claim for this; it is for the Claimant to set out his or her case and the Respondent to answer that case. Neither party, both of whom had the benefit of legal representation, identified this, at the case management stage, or at the final hearing. Whilst the overriding objective is that cases should be dealt with fairly and justly, the parties and their representatives are to assist the Tribunal in reaching that objective: accurately pleading a case and identifying issues is one way in which representatives, in particular, can do so. 62. Returning to the appeal, however, the Tribunal proceeded to determine the claim on the basis set out at paragraph 42 above. It did not find that the Claimant’s case failed because her asserted individual disadvantage did not correlate with the group disadvantage (and nor does that appear to have been advanced). Rather, the Tribunal found that:
“The Claimant was not offered the opportunity to apply for the roles … because she was not in the TP, but we find that this was because she had not realistically tried to gain entry to the TP. For this reason, we find it was not the application of the PCP which put the Claimant at that particular disadvantage, but her failure to apply to the TP.” (Para 36 of the ET Judgment.)” 63. I consider that this paragraph evidenced an error of law made by the Tribunal. I accept the submission made on behalf of the Claimant that applying the statutory language of s.19 in the light of the decision in Essop , a prima facie claim of indirect discrimination was made out. In this case, the relevant requirements of s.19 were established: it was agreed that a PCP existed and was applied by the Respondent: the Respondent promoted from staff in the TP. In addition, the group disadvantage was established and the Claimant established she belonged to the group: the claim was determined on the premise that group disadvantage was that there was a lower likelihood of members of the affected age group (55-70) being members of the TP. The Claimant was within that group. The Tribunal was satisfied that that group disadvantage was established on the evidence before it. It expressly rejected the case advanced by the Respondent that the statistical figures were misleading and did not, in truth, evidence a discriminatory effect. Finally, and importantly, the Claimant suffered the corresponding disadvantage as the group: she was not in the TP. As set out in Essop , because the case proceeded on the basis that the group disadvantage was the reduced likelihood of those in the affected age group being in the TP, all those in the group suffer the individual disadvantage. (See paragraph 37(i) above). I agree with the submission made by the Claimant that, correctly applying Essop , the Tribunal should have then found that a prima facie case of indirect discrimination had been established. 64. I also agree, however, that the analysis of what had actually happened in this case did not need to stop there. As set out in Essop , it must remain open to a Respondent to show that the established group disadvantage did not disadvantage an individual. However, as the reason for the group disadvantage was not known in this case, and because the group disadvantage was expressed as a ‘lower likelihood’ of being in the TP that, may be more difficult. (Para 36(v) and (vi) above). That was envisaged by the Supreme Court in Essop as a matter of principle. The facts of this case illustrate why and how that may arise. 65. In particular, in my judgment, one of the valid criticisms made of the Tribunal’s conclusion set out at para. 53 above was that there was no evidence before the Tribunal as to what would have happened had the Claimant either appealed her appraisal mark or had she self- nominated to the TP. The Tribunal made no findings of fact on that issue. In fact, in the Respondent’s answer to the Appeal the Respondent stated that: “[n]obody knows what would have happened had the C appealed her “met expectations” appraisal and/or undertaken the self-nomination route to the TP … Whilst the Tribunal did have evidence of others that had successfully gained access via the self-nomination route, it could not make a finding of fact that the Claimant would have succeeded had she tried.” 66. As it could not be said that the consequence of the Claimant self- nominating, or appealing her appraisal, would have been that she would have been placed in the TP, it equally could not have been said that it was her failure to do either of those things which prevented her from being in it. 67. Closely aligned to this point is the fact that there were, in practice, 3 routes through which an employee could be placed in the TP: directly from appraisal; appeal of rating following appraisal; or, self-nomination. The Claimant did not try two of those routes, (and that may reflect the statement that ‘she did not realistically try’) but she did try the other, because she worked in her role and participated in her 1:1 appraisal. She was given a ‘meets expectations’ rating and then not placed in the TP. There was no evidence about why she was rated as ‘meets expectations’ only. In my judgment, in order to have successfully advanced the ‘undeserving Claimant’ argument, the Respondent would have to have adduced and proved that this was because of her performance, or indeed other reason, but certainly that it was not because of the group disadvantage or something related to it such as the application of stereotypical assumptions about age. 68. I am satisfied that the Tribunal erred in reaching the conclusion it did in paragraph 36 of its Reasons. In doing so, the Tribunal made a finding that the Claimant was not put at a disadvantage by the PCP, the PCP being, “that the Respondent only promoted managerial staff on the basis of their pre-existing membership of the TP”
. However, on any analysis, and indeed the Tribunal’s, she was: but for the application of the PCP she could have been considered for the relevant roles because the obstacle to her being considered for the roles would not have existed. The Tribunal then went onto look at what the effective cause was for the Claimant not being in the TP and found that the effective or real cause was that she had not realistically tried to get into the pool. That was an error. That conclusion was reached when the evidence was that she had not advanced to it through one route, did not try two others, but where the Tribunal could not legitimately conclude that, causatively, that failure led to her not being in the TP. Perhaps, unusually, in order for the Respondent to have proved that she was an ‘undeserving Claimant’ it would have to have established, through evidence, that it was likely that she would have been placed in the pool if she had appealed or had self-nominated. Rather than applying the statutory language, the Tribunal sought to focus on the causative link between the Claimant’s individual actions and the individual disadvantage without reflecting on the available evidence (or lack thereof) about the consequences of the Claimant’s individual actions. 69. Having reached this conclusion, I stood back from the case and the facts to consider the credibility and consequence of that analysis. Equality law has real importance in society. It is one of the cornerstones through which we, as a democratic society, seek to ensure that all members of that society, whatever their gender, age, race, sexual orientation, beliefs, abilities or disabilities can participate fairly and fully. It would be regrettable if overtly complex decisions or outcomes in this field led to decreased credibility or confidence in this area of law. 70. In this case, standing back, I consider that it is important not to over-complicate the issue. The Respondent applied a policy (recruiting from the TP) which had the effect of limiting the pool from which applicants for more senior roles within the organisation could have been selected. There were legitimate reasons for the policy. The effect of the rule, however, had a particularly disadvantageous or prima facie discriminatory effect on one group of older employees. The Claimant was one of those employees. She was affected by the policy because she was not considered for two roles which she could otherwise have been considered for. It was up to the Respondent to prove that the discriminatory effect of the rule was not at play in her particular case. The Respondent did not place before the Tribunal the evidence required to prove that, because the Respondent did not adduce the evidence about why the rule had that effect in her case. At best, the Respondent established that there were ways in which the Claimant could have mitigated or reduced the impact of the discriminatory effect of the rule. That, however, is something which, depending on the outcome of the argument about justification should play out or be reflected in remedy. Ground 2 71. The Claimant asserts that the Tribunal’s decision regarding objective justification is perverse. That is a high hurdle to overcome. An appellate court must take care not to allow its close examination of the conclusion of the Tribunal to lead it to substitute its own assessment of the decision. A ground of appeal based on perversity ought only succeed where an overwhelming case is made out that no reasonable tribunal, on a proper appreciation of the evidence and law, would have reached that conclusion. ( Yeboah v Crofton [2002] IRLR 634 ). It should only interfere with the decision of a Tribunal where there is a clear self-misdirection or a finding of fact made which was unsupported by any evidence ( Piggot Brothers &Co Ltd v Jackson [1991] IRLR 309. 72. When assessing whether a particular PCP is justified, a tribunal must carry out a critical evaluation through which the discriminatory effect of the relevant provision and the reason and need for it are balanced and weighed. To put the same point another way, the assessment of whether a particular provision can be justified entails a comparison of the impact of that provision upon the affected group as against the importance of the aim to the employer. Furthermore, that analysis and critical evaluation must be demonstrated in the Tribunal’s reasoning. (See Hardys and Handsons v Lax at paras. 22; 33 and Homer paragraph 20 and 24). 73. To some extent, the outcome of the analysis may depend on whether there were non- discriminatory alternatives, or less discriminatory alternatives, available. 74. The points listed at para 51 of the Tribunal’s Reasons list factors which support a conclusion that the TP was not overtly discriminatory on any ground, and, only appears to have adversely affected one particular group of employees (in respect of some, at least, of whom, there may be non-discriminatory reasons why they are not in the TP.) Furthermore, the Tribunal correctly identified checks and balances which have been built into the route through which access to the TP takes place and rightly identifies that the Respondent monitors and/or intends to monitor the impact of the scheme upon diversity. Furthermore, elsewhere in the judgment (and it is important to read the judgment as a whole) the Tribunal identifies that recruitment from promotion was not carried out exclusively from the TP. Furthermore, the Tribunal made reference to the Statutory Code. However, what that paragraph and the Judgment as a whole, in my judgment, does not set out is a critical evaluation through which the discriminatory effect of the relevant provision and the reason and need for it are balanced and weighed. For example (and potential examples only) it did not include consideration of: a. whether there was a need for both of the two relevant positions to be filled quickly or why that was so. This was relevant to the business needs and the decision that it was appropriate to recruit directly from the TP. b. the actual discriminatory effect generally and upon the Claimant: that the decision to recruit only from the TP initially, was, at that stage an absolute bar to other candidates being considered when discriminatory reasons may have played into membership of the TP. It also prevented the Claimant from being considered for a role she had previously been interviewed for and at a pay scale she had previously been employed at. c. whether any lesser measures could have achieved the same aim: could for example membership of the TP have been a desired rather than necessary condition of eligibility. 75. For these reasons, I am satisfied that the decision regarding objective justification cannot stand. 76. As to disposal, I have not heard submissions on this and will invite submissions as set out within the Order accompanying this Judgment. [1] The detailed figures were as follows in respect of different age groups: Age 16–20, 0%, 2 %; Age 21-25, 4%, 10%; Age 26–30, 15%, 13%, Age 31–35, 16%, 12%; Age 36–40, 20%, 15%; Age 41–45, 18%, 13%; Age 46-50, 14%, 13%; Age 51-55, 8%, 10%; Age 56-60 5%, 8%; Age 61-65, 1%, 3%; and Age 66-70, 0%, 1%. [2] The submission made that the figures reflected the fact that the youngest employees on commencing employment with the Respondent will need to build up their experience and expertise before being able to qualify for the TP. This is why for the age group 16 to 20, which is 2% of the Respondent’s employees, none are in the TP, and for the age group 21 to 25, which is 10% of the Respondent’s employees, only 4% are in the TP. Similarly, as employees get to the age group of (for example) 55 to 60, they are more likely to be “winding down”, and less interested in promotion, which is why in that age group (which is 8% of the Respondent’s employees) only 5% are in the TP.