DR. ELAINE DEWHURST, UNIVERSITY OF MANCHESTER,

ELAINE.DEWHURST@MANCHESTER.AC.UK

Minimum Degree Requirements: Are Employers Indirectly Discriminating Against Older Workers

during Recruitment?

Overview

Introduction: Shifting

Goalposts

Indirect discrimination claims:• Scope of Act?• Indirect

discrimination?• Legitimate aim?• Proportionality?

Conclusion

Introduction: Shifting Goalposts

Introduction: Shifting Goalposts

82% (“screenin

g tool”)

2:1 degree

(minimum cut-off 2014)

2:2 degree (minimum

cut-off 2000)

4% (vary requirements)

(Akenham, 2014; Association of Graduate Recruiters, 2013)

Introduction: Shifting Goalposts

94/9

5

95/9

6

96/9

7

97/9

8

98/9

9

99/0

0

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1

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2

02/'0

3

03/'0

4

04/'0

5

05/'0

6

06/'0

7

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8

08/'0

9

09/'1

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40

5

10

15

20

25

30

35

40

45

50

First

Upper Second

Lower Second

Third

(Higher Education Statistics Agency Tables on “Qualifiers by Subject Level and Study” 1994-2014))

Introduction: Shifting Goalposts

Developing issue for older workers: Recruitment – one of the most under-

utilised areas of the Equality Act 2010

In-job requirements for promotion / training:

(Equality and Advisory Support Service (2014)):

5% of queries related to age discrimination 60% of queries related to age

discrimination and work “Refusal of or removal from job role due

to change in education criteria”.

Indirect discrimination Claim

Scope of the Equality Act

2010

Indirect discriminatio

n

Justification

Proportionality

Scope of the Equality Act 2010

Dissuaded Job

Applicants?

Job applicants

?

Dissuaded Applicants?

Job Advertisements and the Equality Act 2010: S. 39(1)(a): cannot discriminate in “arrangements” for

offering employment Does this include discriminatory advertising? Berry (2010): “did not wish to express a definitive

view” / potential lacuna in EA 2010 especially where there was no specific “victim” – need to be an applicant?

CJEU has held that discriminatory public statements fall within scope as they could “strongly dissuade candidates” and “hinder their access to the labour market” (Firma Feryn (2007); Belov (2011))

Job applicants?

Yes, protected under certain circumstances: Must have been impacted in some way Keane (2009): job advertisement required

“limited experience”: Was the applicant “genuine”? EAT held:

Claimant had not thought she would get the jobs

No reason she should seek out jobs requiring “limited experience”

Had made multiple claims Attitude demonstrated “no real interest” in

obtaining the post Untailored application

Applicant was not genuine

Scope of the Equality Act 2010

Significant obstacles: Job applicant / Dissuaded job applicant Genuine requirement

Indirect Discrimination

Particular Disadvantage?

Particular Disadvantage

Are older workers disadvantaged by minimum degree requirements?

Games (2013): PhD requirement Applicant argued:

In 1970s, PhD was unusual qualification and not the norm for teaching staff (only ¼ the number of PhDs were awarded in 1970)

He did not anticipate he would need a PhD to teach when older Lower proportion of candidates in the 56+ age group who had applied

and had a PhD – many may have been deterred from applying by the PhD requirement

ET held: No disadvantage – Games could do a PhD now EAT Held: Potential disadvantage

It was not the answer for the person applying the practice that it would not have placed them at a disadvantage if they had acted differently at an earlier time

Particular disadvantage and Grade inflation

Could grade inflation disadvantage older workers?

Lombard (1978, US): academic records should not be used as a basis of comparison “simply unable to compare the academic records of a

group of candidates of different ages, from different colleges, at considerably different time periods, and under widely different circumstances”(Weber J.)

Would have to “discount the grades of more recent graduate due to the documented phenomenon of grade inflation”.

Grades have “little probative value for individuals who are not members of the same academic generation”

Particular Disadvantage and Grade Inflation

Grade inflation has been reported in UK universities since 2006 (Ray, 2014)

Data supported by UK Higher Education Statistics Agency

However, many reasons could be espoused for increase in grades (educational importance, competitive labour market, improved teaching etc)

Statistical evidence alone may be sufficient to demonstrate particular disadvantage.

Justifications (Legitimate aims)

Is there a legitimate aim for imposing a minimum degree requirement? Legitimate business need argument

Justification (Legitimate Aims)

The “Business Need” Aim Games (2013):

Standard requirement for academic post internationally (expected by funders)

Ensured candidates of the highest calibre Strengthened research credentials of university Staff required to supervise PhD students

No statement by EAT on these aims but tacit acceptance that these were legitimate aims.

Minimum degree requirements? Recruiting candidates of highest calibre Strengthen reputation of business Meet needs of clients / customers Reduce administrative burden

Proportionality

Is a minimum degree requirement appropriate and reasonably necessary means of achieving these legitimate aims?

Proportionality

Games (2013): Applicant argued that PhD was not the standard cut-

off point and University had not considered limitations of PhD has standard cut-off point.

EAT held that ET had not considered this in sufficient depth and remitted to ET for consideration

Minimum degree requirement: is it proportionate?

Proportionality

More appropriate means available: Ranking? Individual Review?

Kamps v Baylor University (2012, US): University applied a uniform standard admission grade criteria (GPA)

Plaintiff (aged 50) argued that due to grade inflation he was disadvantaged and ranking was a more appropriate measure of achievement. (He was in the top 25% of his class on graduation)

Held: as he was admitted under different criteria (a review of his file was conducted) no disadvantage suffered and GPA considered “reasonable” in the circumstances and “non-age based factor” used by every law school

Distinguish: No disadvantage suffered so no in-depth consideration of

proportionality Appropriateness: availability of individual review

Conclusion

Goalposts have shifted for older workersPotential claim for indirect discrimination:

Dissuaded applicants or genuine applicants Grade inflation creates a particular disadvantage May well be justifiable by business need Must not be disproportionate (no potential for

individual review / use of criteria where better alternatives are available)

Conclusion: Minimum grade requirements may well constitute indirect discrimination on grounds of age