Chief Constable of West Yorkshire Police v Homer

It is indirectly discriminatory for employers to apply a criterion 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 Employment Appeal Tribunal (EAT) said that tribunals must be careful to distinguish between age discrimination and the inevitable consequences of ageing.

Basic facts

Following his retirement after 30 years in the police force, Mr Homer started work as a legal advisor for the West Yorkshire Police in October 1995. He did not have a law degree (which was not obligatory at the time) but got the job because of his experience as a serving officer.

In 2004, a number of changes were made to the job profile, including the requirement to have a law degree (or at least to be in the process of studying for one) for new staff. Mr Homer was asked if he would like to start a degree course, but he refused partly because he would not be able to complete it by his retirement date at age 65.

Following an external assessment of the role in 2005 which involved the introduction of a grading system, 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 which was the highest paid. 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 the tribunal agreed with him. It said that claimants in the 60-65 age group were disadvantaged by the requirement to complete a degree course as they could not do so before the force’s normal retirement age of 65.

It also decided that West Yorkshire Police could not justify this requirement because although the aim of recruiting and retaining high calibre staff was a legitimate one, imposing the criterion on all staff was not a proportionate means of achieving it.

EAT decision

The EAT upheld the appeal. 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. “The need for a degree does of course impose a barrier, but it is a barrier which applies to all alike. It is not one which is affected by age”.

It concluded, therefore, 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”.

However, the EAT added that had it found a particular disadvantage for Mr Homer’s age group, it would have upheld the finding that any age discrimination was not justified. This was because the requirement was not a proportionate means of achieving the recruitment and retention of appropriately qualified staff.

Comment

This case demonstrates the difficulties associated with proving disadvantage for particular age groups under the age discrimination regulations. In fact, the disadvantage could well have applied, for example, to individuals aged between, say, 55 and 60. It is artificial to distinguish between discrimination on grounds of age and the inevitable consequences of ageing. The claimant would probably have been better advised to put his case by arguing that workers aged 60 to 65 were less likely to have a law degree. That may well be true, but he would have required statistical evidence to prove it.