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5 year qualified criterion amounted to indirect age discrimination

5 year qualified criterion amounted to indirect age discrimination

In Rainbow v Milton Keynes Council, Ms Rainbow was employed as a teacher, was aged 61, had 34 years’ teaching experience and was on one of the uppermost teacher’s pay scales. Having reduced her hours at the school’s request, she wanted to increase them and applied for a Grade 3 teaching vacancy. The advert stated that the vacancy “would suit candidates in the first five years of their career”, which effectively meant that the school were looking to employ someone on a pay scale lower than that which experienced teachers would enjoy.

Ms Rainbow was not short-listed for the position. The successful candidate had 4 years’ teaching experience and their salary was approximately £7,000 less than it would have been to employ Ms Rainbow in that job. Ms Rainbow brought a claim for age discrimination against the Council.

The tribunal held that the advert constituted indirect age discrimination. The criterion put persons over 60 at a disadvantage and put the claimant at a particular disadvantage as she was 61 and had not been shortlisted for the job. Furthermore, the tribunal rejected the justification defence put forward by the Council that the cost of employing the claimant would be prohibitive given the school’s financial constraints. It is established case law that costs alone cannot be a justification as that would allow employers to successfully defend claims by arguing that it was cheaper to discriminate than not to discriminate.

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