1. DR. ELAINE DEWHURST, UNIVERSITY OF MANCHESTER, ELAINE.DEWHURST@MANCHESTER.AC.UK ELAINE.DEWHURST@MANCHESTER.AC.UK Minimum Degree Requirements: Are Employers Indirectly Discriminating Against Older Workers during Recruitment?

2. Overview Introduction: Shifting Goalposts Indirect discrimination claims: Scope of Act? Indirect discrimination? Legitimate aim? Proportionality? Conclusion

3. Introduction: Shifting Goalposts

4. 82% (“screening 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)

5. Introduction: Shifting Goalposts (Higher Education Statistics Agency Tables on “Qualifiers by Subject Level and Study” 1994-2014))

6. 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”.

7. Indirect discrimination Claim Scope of the Equality Act 2010 Indirect discrimination JustificationProportionality

8. Scope of the Equality Act 2010 Dissuaded Job Applicants? Job applicants?

9. 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))

10. 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

11. Scope of the Equality Act 2010 Significant obstacles:  Job applicant / Dissuaded job applicant  Genuine requirement

12. Indirect Discrimination Particular Disadvantage?

13. 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

14. 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”

15. 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.

16. Justifications (Legitimate aims) Is there a legitimate aim for imposing a minimum degree requirement?  Legitimate business need argument

17. 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

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

19. 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?

20. 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

21. Conclusion Goalposts have shifted for older workers Potential 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