Employment

Age discrimination - Contract of service - Both parties appealing

Homer v Chief Constable of West Yorkshire Police: Supreme Court (Lords Hope DP, Brown, Mance and Kerr SCJJ, Lady Hale): 25 April 2012

In 1995, the employee, who was aged 51, began working for the Police National Legal Database (the employer) as a legal advisor. When he was appointed the role did not require a law degree or equivalent if the post-holder had exceptional experience or skills in criminal law combined with a lesser qualification in law. In 2005, the organisation introduced a new grading structure to improve career progression. The new structure provided for three promotion thresholds above the starting grade, the third and final of which required a law degree.

In 2006, the employee was graded under the new system as reaching the first and second thresholds but not the third, because he did not have a law degree. In order to reach the third and highest threshold under the new structure the employer would have been required to study for a law degree part-time alongside his work, which would take four years. At that time, he was 62 years old and, being due to retire in 2009 at the age of 65, he would have been unable to obtain a degree before his retirement.

His various internal appeals and grievances were dismissed and, in April 2007, he issued proceedings under the Employment Equality (Age) Regulations 2006, SI 2006/1031 (the Age Regulations) which had come into force in October 2006. Regulation 7 of the Age Regulations made it unlawful for an employer to discriminate against employees in respect of, inter alia, opportunities for promotion or receiving of other benefits.

Regulation 3 provided that indirect discrimination occurred when a person (A) applied to another person (B) ‘...a provision, criterion or practice which he applies... to persons not of the same age group as B, but which puts... persons of the same age group as B at a particular disadvantage when compared with other persons, and which puts B at that disadvantage and A cannot show the... provision, criterion or practice to be a proportionate means of achieving a legitimate aim’. It was accepted that regulation 3 had properly transposed article 2(2)(b) of Council Directive (EC) 2000/78 (establishing a general framework for equal treatment in employment and occupation) on equal treatment in employment and occupation into domestic law in cases of indirect age discrimination.

The Employment Tribunal (the tribunal) found that the appropriate age group was employees aged between 60 and 65 as those persons would have been unable to obtain a law degree before retiring and were therefore prevented from reaching the third threshold with its associated benefits. It held that the employer had been indirectly discriminated against on the ground of age, which was not objectively justifiable on the facts. The Employment Appeal Tribunal (EAT) and Court of Appeal both held that there had been no indirect discrimination, but that if there had been then it would not have been objectively justified. It concluded that what had put the employee at a disadvantage had not been his age but his impending retirement. Had it not been for that, he would have been able to obtain a degree and reach the third threshold. Both parties appealed to the Supreme Court.

The issues were: (i) whether the EAT and Court of Appeal had erred in finding that what put him at a disadvantage was not his age but his impending retirement; and (ii) whether the issue of justification had been correctly decided.

The court ruled: (1) The law of indirect discrimination is an attempt to level the playing field by subjecting to scrutiny requirements which looked neutral on their face but in reality worked to the comparative disadvantage of people with a particular protected characteristic. A requirement which worked to the comparative disadvantage of a person approaching compulsory retirement age is indirectly discriminatory on grounds of age (see [16] of the judgment). Previous formulations of indirect discrimination relied upon disparate impact - so that if there was a significant disparity in the proportion of men affected by a requirement who could comply with it and the proportion of women who could do so, then that constituted indirect discrimination.

But the new formulation was not intended to make it more difficult to establish indirect discrimination: quite the reverse. It was intended to do away with the need for statistical comparisons where no statistics might exist. It was intended to do away with the complexities involved in identifying those who could comply and those who could not and how great the disparity had to be. All that was needed is a particular disadvantage when compared with other people who do not share the characteristic in question. It was not intended to lead us to ignore the fact that certain protected characteristics are more likely to be associated with particular disadvantages (see [14] of the judgment).

In the instant case, the reason for the disadvantage had been that people in the identified age group did not have time to acquire a law degree. The reason why they did not have time to acquire a law degree was that they were soon to reach the age of retirement. The resulting scrutiny might ultimately lead to the conclusion that the requirement could be justified, but if it could not, then it could be modified so as to remove the disadvantage (see [17] of the judgment). The employee's appeal would be allowed (see [18] of the judgment). London Underground Ltd v Edwards (No 2) [1998] All ER (D) 231 considered.

(2) As regarded justification for the indirect discrimination, part of the assessment of whether the criterion could be justified entailed a comparison of the impact of that criterion upon the affected group as against the importance of the aim to the employer. That comparison had been lacking, both in the tribunal and in the EAT. The employee (and anyone else in his position, had there been someone) was not being sacked or downgraded for not having a law degree. He was merely being denied the additional benefits associated with being at the highest grade. The most important benefit in practice was likely to have been the impact upon his final salary and thus upon the retirement pension to which he would become entitled. So it had had to be asked whether it had been reasonably necessary in order to achieve the legitimate aims of the scheme to deny those benefits to people in his position? The tribunal had not asked itself that question (see [24] of the judgment).

As the tribunal had not approached the question of justification in a suitably structured way, and ask itself all the right questions, the employer's appeal would be allowed and the case would be remitted on the issue of jurisdiction (see [26] of the judgment). Bilka-Kaufhaus GmbH v Weber von Hartz: 170/84 [1986] IRLR 317 considered; De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 considered; Hardys & Hansons plc v Lax [2005] All ER (D) 83 (Jul) considered; R (on the application of Elias) v Secretary of State for Defence [2006] All ER (D) 104 (Oct) considered; Seda Kucukdeveci v Swedex GmbH & Co KG: C-555/07 [2010] All ER (D) 126 (Feb) considered; Hennigs v Eisenbahn-Bundesamt; Land Berlin v Mai: C-297/10 and C-298/10 [2011] All ER (D) 72 (Oct) considered.

Decision of The Court of Appeal [2009] IRLR 262 reversed.

Robin Allen QC and Declan O’Dempsey (instructed by McCormicks, Harrogate) for the employee; Clive Lewis QC and David N Jones (instructed by the Force Solicitor, West Yorkshire Police) for the employer.