1. With respect to indirect age discrimination and given the higher proportion of younger graduates in the working population, can we specify that a degree is an essential criteria when advertising a job vacancy?

A number of larger employers in the UK, and further afield, such as Nestlé, are making the brave move of removing the degree classification from their job specifications. Instead, these employers are leaning towards a more skills-based assessment. The trend of removing degree classification from job specifications has gained considerable momentum in recent years and in the US in particular. In explaining the rationale for the change, many employers have cited a lack of ... A number of larger employers in the UK, and further afield, such as Nestlé, are making the brave move of removing the degree classification from their job specifications. Instead, these employers are leaning towards a more skills-based assessment. The trend of removing degree classification from job specifications has gained considerable momentum in recent years and in the US in particular. In explaining the rationale for the change, many employers have cited a lack of evidence between University success and job performance. However, more cynical observers might say that the real reason is due to the possibility of claims for indirect discrimination. Indirect discrimination occurs where workers or job applicants are treated less favourably as a result of requirements that they might find hard to satisfy based on one of the nine discriminatory grounds. For example, if a job advertisement states that applicants have to be of a certain minimum height, this may put women at a particular disadvantage. In accordance with equality legislation, the rationale for this requirement would need to be objectively justified and the employer would need to be in a position to demonstrate why the requirement is necessary for the job in question. The issue arose in the US in the 1971 case of Griggs v. Duke Power Co. where the US Supreme Court found that including certain education requirements as a prerequisite condition of employment acted to exclude racial minority job applicants as many racial minority individuals were unable to attend college due to financial constraints. The Court held that the Civil Rights Act 1964 prohibited employment practices excluding racial minorities, even if the employer did not intend to discriminate, unless the employer could prove that the practice was objectively necessary for job performance. More recently, in Homer v Chief Constable of West Yorkshire Police (2012), the UK’s Supreme Court found that indirect age discrimination had occurred where a change in the organisation’s rules required the claimant, then 62 years old, to have a law degree to advance to a higher pay grade. A 2011 report commissioned by the UK government found that working-class applicants were “systematically locked out” of top jobs due in part to recruiters’ focusing primarily on degrees from elite universities which many potential candidates could not afford to attend. In Scotland, a similar report found that financial and legal firms unintentionally focused on those “more affluent” applicants that had attained degrees from specific, high-ranking Universities. The issue has not been the subject of much scrutiny in Ireland as of yet. An employee will only succeed in a discrimination claim if they can demonstrate that the requirement to hold a degree disadvantaged them on the grounds of gender, civil status, family status, sexual orientation, religion, age, disability, race or membership of the Traveller community. In most cases, it would be difficult for a prospective employee to make that case unless particular circumstances arise (as per the case law above). However, best practise might suggest that, if you do propose to include degree classifications in your job specifications, you should be in a position to demonstrate why the requirement is objectively justified and necessary for a particular role. This article first appeared as part of Legal-Island’s employment law update service. Find out more: www.legal-island.ie