Labour & European Law Review Weekly Issue 273 14 June 2012
It is indirectly discriminatory for employers to apply a provision, criterion or practice (PCP) which is applied 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 Supreme Court held that a requirement to have a law degree discriminated against people in the 60 to 65 age group.
After 30 years in the police force, Mr Homer got a job as a legal advisor for the West Yorkshire Police in October 1995. At that time there was no requirement to have a law degree.
As the force had problems in attracting suitably qualified candidates it introduced a new grading structure in 2005 which had three thresholds. In order to reach the third threshold it was necessary to have a law degree.
In 2006, Mr Homer was re-graded to the first and second thresholds but not the third because he did not have the requisite degree. 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.
Decisions of lower courts
And the Tribunal agreed with him. It said that people in the 60 to 65 age group suffered a particular disadvantage when compared with younger people because they were prevented from reaching the threshold and therefore the status and benefits which went with it. The employer appealed.
The EAT and Court of Appeal took a different approach and held that Mr Homer was not put at a disadvantage because of his age but because of his impending retirement. Had he not been retiring then he would have been able to obtain a degree and reach the threshold (and consequently the status and benefits that went with it). Mr Homer was therefore in the same position as anyone else who was leaving employment for another reason.
Supreme Court decision
The Supreme Court disagreed. It said that Mr Homer had been disadvantaged because of a reason directly related to his age - retirement. It could not be right, said the Court, to equate leaving work because of impending retirement with other reasons for doing so as they were materially different. A person leaving work for family reasons or who was taking early retirement had a choice; someone coming up against the mandatory retirement age did not.
It also said that the aims which could justify indirect age discrimination were wider than those which could justify direct age discrimination. In particular it said they were not limited to social policy aims but could also encompass a real need on the part of the employer.
In terms of justification, there was no dispute that the force had a legitimate aim - to recruit and retain staff of the “appropriate calibre” However, the Court said it was necessary to distinguish between justification of the criteria for recruitment and justification of the criteria for entry to higher grades.
The issue was whether applying the law degree criteria to existing employees seeking promotion was appropriate. That question was referred back to the Tribunal to consider justification and if there was a non discriminatory alternative.
The case confirms that a requirement which disadvantages a person approaching retirement will amount to indirect age discrimination.