Access to promotion and job changes

Employers must ensure employees have equal access to jobs and promotion opportunities. A practice that makes it harder for a member of a protected group to apply for a position will be unlawful indirect discrimination unless it can be objectively justified. For a good example, see Homer v Chief Constable of West Yorkshire Police [2012] UKSC 150, summarised on page 241-242. In this case, a newly introduced requirement for all senior police legal advisers to hold a law degree to access promotion discriminated against a serving police officer who was close to retirement age and did not have enough working years left in which to acquire the degree.

Where evidence shows that applicants with a protected characteristic do less well at a recruitment or promotion test than those without the characteristic, a claim of indirect discrimination can be brought calling on the employer to explain and justify the difference. Applicants need not show that the reason why they performed less well was due to their protected characteristic (Essop v Home Office (UK Border Agency) [2017 UKSC 27).

Reasonable adjustments must be made to selection procedures to accommodate disabled candidates. For example, in Government Legal Service v Brookes [2017] UKEAT/0302/16/RN, the GLS’s refusal to modify a computerised multiple choice test for a job applicant with Asperger’s Syndrome was unlawful disability discrimination.