Chief Constable of West Yorkshire Police v Homer
It is indirectly discriminatory for employers to apply a provision, criterion or practice (PCP) which seems to apply equally to everyone but which, in reality, puts people of a certain age group at a disadvantage. In Chief Constable of West Yorkshire Police v Homer, the Court of Appeal said that it was not indirect age discrimination to require staff at a certain grade to have a degree, as the requirement applied to everyone at that grade, irrespective of their age.
Basic facts
Following his retirement after 30 years in the police force, Mr Homer got a job as a legal advisor for the West Yorkshire Police in October 1995. He did not have a law degree but was employed because of his experience as a serving officer.
In 2004, the force decided that new staff should have a law degree (or be studying for one) and asked Mr Homer if he would like to start a degree course. He refused partly because he would not have finished it by his retirement at age 65.
Following an external assessment of the role in 2005, Mr Homer applied to be re-graded to the highest level (the third threshold). However, because he did not have a law degree he could not satisfy all the criteria for this threshold. He lodged a grievance but was unsuccessful.
Mr Homer then brought a claim of age discrimination on the basis that he could not achieve the necessary criterion for the highest pay threshold before reaching the retirement age of 65.
Tribunal and EAT decisions
And the tribunal agreed with him. It said that claimants in their early 60s were disadvantaged by the requirement because they could not complete the course before the normal retirement age of 65. It also decided that the force could not justify it because although the aim of recruiting and retaining high calibre staff was legitimate, imposing the criterion on all staff was not a proportionate means of achieving it.
The EAT upheld the force’s appeal (see weekly LELR 97). It decided that people in the 60 to 65 age group did not suffer any particular disadvantage as the requirement to have a law degree applied to everyone. Nor did it think it was any more difficult for older rather than younger people to obtain the qualification.
It concluded that the financial disadvantage that Mr Homer suffered was the result of “the inevitable consequence of age”, not of age discrimination. It reasoned that “the shorter the remaining working life the less will be earned by way of future earnings. It seems to us that the claimant's case would require more favourable treatment for older workers to mitigate the fact that as they get older so their working lifespan decreases and the future value of benefits conferred by the employer is reduced”.
Court of Appeal decision
The Court of Appeal has just upheld the EAT’s decision.
It said that the main question was whether “the introduction and application of the law degree provision put the appellant and others in his age group at a particular disadvantage?”
And it decided that irrespective of his age when the PCP was introduced, Mr Homer would still not have achieved the status required for the third threshold “unless and until he obtained the requisite degree. The fact that, as a man in his sixties, he would not have time to enjoy the status between graduation and retirement is no different from the fact that he would have no opportunity to enjoy the increased remuneration. .. Put another way, the appellant's case is not one of a particular disadvantage but one of a claim for more favourable treatment on account of age”.