Essential or desirable – how job requirements could inadvertently lead to discrimination
Many employers, when advertising a job vacancy, sift the requirements for that job into two types: essential and desirable. If that process hasn’t been carried out with a due regard for the requirements of employment law, and there is no evidence to back up the decisions underlying it, the employer could find themselves in trouble if an employee decides to progress their grievance to an employment tribunal. This is particularly problematic if the grievance concerns discrimination.
Just such a case occurred recently at the Scottish Employment Tribunal and ended badly for the employer.
Mr Drummond has worked for HMRC since October 2002. He experiences syncope and pre-syncope episodes, otherwise known as fainting. Because of this, the DVLA informed him that he must not drive. HMRC knew about him having lost his driving licence due to medical reasons.
His role involved investigating businesses who might not be reporting some or all of their income to HMRC. This could involve visits to the business, which would be carefully planned and risk assessed in advance. Mr Drummond usually attended visits with another caseworker, who drove them to the visit, or he would use public transport.
He had contacted Access to Work before starting in the post to see if assistance could be provided. They confirmed, in principle, that funding for a support worker to drive for him was available.
In 2020, HMRC began a recruitment drive to recruit further caseworkers. Based on solely informal and anecdotal discussions, and with no objective assessment, HMRC concluded that only a small cohort of caseworkers now had driving licences. It was agreed that, for this recruitment drive only, it would be an essential criterion that all applicants had a valid UK driving licence. No Equality Impact Assessment was undertaken and there was no consideration of how this might affect individuals with particular protected characteristics.
One of Mr Drummond’s former line managers suggested that he apply. Mr Drummond pointed out the driving licence was essential, but the manager doubted that it would be a problem, as the reason for not having a driving licence fell within the Equality Act and there were other supports available (via Access to Work).
Mr Drummond began to complete the online application but when he stated that he did not have a full valid UK driving licence, the application process terminated. He was then told that his application had been unsuccessful as he had not met the eligibility requirements for the job.
He replied, raising the subject of his current lack of a Driving Licence being a disability under the Equality Act 2010 as well as suggesting adjustments that could be made to allow him to carry out the role’s duties.
HMRC confirmed the outcome remained unchanged and he had been unsuccessful due to the fact a driving licence was an essential criterion for the role and this was “clearly outlined in the advert and job description”. All applicants had to have a driving licence, because the role required travel at times or to places where public transport would not be appropriate. They said that there were many other roles he could do if he was unable to drive, and that the ‘reasonable adjustment’ could be another role.
Mr Drummond raised a grievance in February 2020. However, his grievance was not upheld. He was told he could appeal but he felt the process had gone on for a very long time and his concerns had still not been addressed. He could no longer apply for the role and did not see any point in appealing.
He therefore took the matter to the Employment Tribunal for disability discrimination, loss of salary for the role he had applied for, loss of pension contributions on this role and injury to feelings.
What does the law say?
Section 15 of the Equality Act 2010 says:
(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.’
The burden is on the respondent to prove objective justification. To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and reasonably necessary in order to do so.
Section 19 of the Equality Act 2010 (Equality Act 2010) states:
(1)‘A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—
a. A applies, or would apply, it to persons with whom B does not share the characteristic,
b. it puts or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
c. it puts, or would put, B at that disadvantage, and
d. A cannot show it to be a proportionate means of achieving a legitimate aim.’
What happened at the tribunal?
HMRC’s position was that their treatment of Mr Drummond was a proportionate means of achieving legitimate aims.
Those aims were:
a. The need to ensure that those appointed to roles involving travel throughout Scotland, often at short notice and during unsociable hours, were able to carry out that travel and therefore fulfilled their role (the First Aim); and
b. Increasing the number of those in the workforce with driving licences, as many did not have driving licences, which was a key operational risk (the Second Aim).
The Tribunal concluded that HMRC could have achieved the first aim by considering reasonable adjustments to the Role. In relation to the second aim, the Tribunal did not accept that HMRC had shown too many of the current workforce did not have driving licences. No assessment had been undertaken by HMRC to determine this; any evidence was anecdotal and informal.
The aim could have been achieved by stating that a driving licence was a desirable criterion, rather than treating it as essential.
Mr Drummond said that it would have been reasonable for HMRC to:
i. open the job up so that the applicant should provide details of how they might undertake travel without a licence;
ii. accept an application based upon the provision of access to work support; and/or
iii. consider reallocation of any tasks within the wider team where some tasks absolutely require a driving licence.
The Tribunal looked at each of these adjustments to decide whether it would have been reasonable for HMRC to have adopted them. They concluded that it would have been reasonable.
Mr Drummond’s claim was upheld and he was awarded a total of £20,179.83, made up of:
£11,108.49 for financial loss; and
£9,071.34 compensation for injury to feelings.
The main point for employers to bear in mind with this case is that they need to be sure of what the role entails when they create / advertise it – including whether any criteria could be potentially either direct or indirectly discriminatory.
It all depends on the nature of the job. For example, for a delivery driver, a driving licence is essential to the role, whilst for a project manager, it isn’t as there may be other means of transport they can use to travel for their job.
Where a criterion is listed, the employer needs to consider whether, if someone applies without it but can offer an alternative solution, such as – in this case - Access to Work Funding, that can be taken into account.
Although they may have classed the criterion as a proportionate means of achieving a legitimate aim, the employer will need to show a degree of flexibility and reasonableness. In the Drummond case, this meant that some form of transport was accessible to the applicant which enabled him to get to the locations in question in the same way as if he was a driver.
HMRC chose to completely disregard this alternative option and instead argued that the UK driving licence was essential. This was unreasonable on their part as they could not show that this was the only possible way someone could do that job.
They could instead have offered him the role on a trial basis to see whether the Access to Work option would have worked out. If it hadn’t, then they would have tangible evidence to prove it.
To sum up, employers need to consider all alternatives to criteria like this, and to be open minded and willing to try when it comes to what they can consider.