Labour & European Law Review Weekly Issue 437 16 September 2015
The Equality Act allows employers to discriminate against their employees as long as they can objectively justify it. In Chief Constable of West Midlands Police and ors v Harrod and ors, the Employment Appeal Tribunal (EAT) held that a rule in police pension regulations which effectively allowed forces to retire officers over a certain age could be objectively justified.
Following the election of the Coalition Government in 2010, police forces were required to make budget cuts of 20 per cent over the following four years. Five forces decided to reduce their staff numbers by using the power provided under Regulation A19 of the Police Pension Regulations 1987 which allowed them in the “general interests of efficiency” to retire officers who qualified for two thirds of their pension. As officers had to have served for 30 years to qualify and the minimum entry age was 18, this regulation disadvantaged anyone over 48.
A number of officers claimed indirect discrimination on the basis of age under section 19 of the Equality Act 2010.
Section 19 states that there is indirect discrimination if an employer applies a “provision, criterion or practice” (PCP) to a relevant characteristic which puts workers who share that characteristic at a particular disadvantage compared with those who do not and it cannot be shown that it is a “proportionate means of achieving a legitimate aim”.
The tribunal held that A19 was a provision that included a criterion whereby retirement could be enforced when an officer had obtained two thirds of their annual pensionable pay. The five forces had then added a practice that all officers had to retire at that point.
Although increasing efficiency was a legitimate aim, the tribunal held that the five police forces could have found alternative ways of achieving their aim rather than relying entirely on regulation A19. For instance, by offering part-time working and/or career breaks. Their failure to consider the alternatives meant that the defence of justification failed.
The EAT, however, disagreed. Although the tribunal was right that it was potentially discriminatory to rely on A19, it failed to realise that the discrimination arose from the regulation itself and not from any practice that the forces themselves had adopted. The evidence should have led the tribunal to realise that certainty of achieving the necessary efficiencies was an essential part of the aim or means, and that there was no other way in which the aim could be achieved.
It also criticised the tribunal for failing to consider whether the regulation provided a reasonably necessary means of achieving the aim in mind - to reduce staff numbers - and had instead fallen into the error of manufacturing a different scheme.
In addition, the tribunal had wrongly concentrated on the process and reasoning adopted by the forces when deciding to adopt A19, rather than whether the use of the regulation was proportionate and could therefore be objectively justified. It also applied too stringent a standard of scrutiny, partly because it failed to realise that Parliament had chosen to make A19 in the terms it did for a reason; and partly because it thought that A19 was intended to provide security of tenure (which it did not). Finally, it failed to analyse the reasons of social policy which underpinned the restriction of the use of A19 to those who had an immediate pension entitlement.
The EAT therefore overturned the tribunal decision on the basis that the use of A19 was appropriate and reasonably necessary in the circumstances.