Age discrimination – Degrees – Indirect discrimination – Proportionality

Homer v Chief Constable of West Yorkshire: CA (Civ Div) (Lords Justice Mummery, Maurice Kay, Richards): 27 April 2010

The appellant (H) appealed against a decision ([2009] ICR 223) that the respondent chief constable had not discriminated against him on grounds of age.

H had worked as a police officer for 30 years before retiring. He then commenced employment as a legal adviser with the Police National Legal Database. After H had been working there for some 10 years a career structure with three thresholds was established. H made applications to be treated as complying with the first two thresholds, and he was successful and was re-graded accordingly. He then made an application with respect to the third threshold but that failed. The reason was that, in order to qualify at the third level, there was a range of criteria which had to be satisfied, one of which was the need to have a law degree. H did not have a law degree. He was then aged 61. If he undertook a law degree part-time he would not qualify until after he reached the age of 65, at which he expected to retire. He brought a claim in the employment tribunal of age discrimination. The tribunal held that there had been indirect discrimination within regulation 3(1)(b)(ii) of the Employment Equality (Age) Regulations 2006 because the age group of which H was a member was put at a particular disadvantage by the law degree criterion, because it prevented those of H’s age group from achieving the status of the third threshold and the financial rewards attached to that status, and the chief constable failed to establish that that was proportionate, mainly because of a failure to adopt a reasonable alternative. The Employment Appeal Tribunal allowed the chief constable’s appeal, holding that there was no disadvantage affecting persons falling within H’s age bracket because all persons without a degree were treated in the same way and the barrier imposed by the need for a degree was not affected by age; the financial disadvantage resulting from the operation of the criterion was the inevitable consequence of age and not of age discrimination. The chief constable submitted that the law degree provision did not put H and others in his age group at a particular disadvantage because it was not his age but the temporal proximity of his intended retirement that prevented him from obtaining a law degree and attaining the third threshold.

Held: the employment tribunal had been wrong in law to find a particular disadvantage related to age. Whatever his age had been on the introduction of the law degree criterion, H would have failed to achieve the status of the third threshold unless and until he obtained the requisite degree. The fact that, as a man in his 60s, he would not have time to enjoy the status between graduation and retirement was no different from the fact that he would have no opportunity to enjoy the increased remuneration. H’s case was not one of a particular disadvantage but one of a claim for more favourable treatment on account of age. The EAT correctly found the employment tribunal to have erred in law in finding a disadvantage.

Appeal dismissed.

Declan O'Dempsey (instructed by McCormicks) for the appellant; David Jones (instructed by in-house solicitor) for the respondent.