Indirect age discrimination in the Supreme Court

April 26th, 2012 by Paul Nicholls QC

The judgments of the Supreme Court in Homer v Chief Constable of West Yorkshire contain the Supreme Court’s analysis of the law relating to indirect age discrimination.

The case concerned an officer who worked for the Police National Legal Database. Some time after he commenced employment, a requirement was introduced that, in order to reach the highest grade in the organisation, it was necessary for employees to have a law degree. Mr. Homer was not appointed to that highest grade because he did not have a law degree. At the time of this decision he was 62. He would not have been able to obtain a law degree before reaching the age when he would have had to retire.

Mr. Homer alleged that the requirement that anyone who wished to be appointed to the highest grade, as applied to him, was indirectly discriminatory on the grounds of his age.

The ET held that he had been indirectly discriminated against on the grounds of his age and that this was not justified. Both the EAT and the Court of Appeal held that he had not been indirectly discriminated against but that if he had been, any such discrimination was not justified.

The EAT and Court of Appeal accepted the argument that the reason for Mr. Homer’s treatment was not related to his age but to the fact that he would shortly be leaving work. Anyone, in any age group, who was nearing the end of their employment, would be unable to obtain a law degree in time and so would be unable to progress to the highest grade. This did not therefore put any particular age group at a disadvantage. It put those who were nearing the end of their employment, for whatever reason and at whatever age, at a disadvantage.

The Supreme Court took a different view. It held that Mr. Homer had been put at a disadvantage on grounds of age. The reason why he would not be able to obtain his law degree was that he would have to retire and the reason he would have to retire was his age. Therefore the requirement put his age group at a disadvantage. Lady Hale rejected the suggestion that there was a valid comparison between those who would cease working because of retirement and those who would cease for other reasons. Employees in these two camps were not in the same situation because the former had no choice about the termination of their employment whereas the latter did.

It is interesting that judges in the EAT and Court of Appeal on the one hand and the Supreme Court on the other were able to come to these different views. On the face of it, both analyses are respectable. (Indeed Lord Mance indicates that he changed his view.) There is no obvious a priori reason why the Supreme Court was right and the lower courts wrong. Perhaps the difference between them was the readiness of the Supreme Court to treat factors attributable or related to age – here retirement – as being part of age, such that treating a person in a particular way because that person was about to retire is the same as treating that person on grounds of age. It will be interesting to see whether other, more stereotypical, traits could be relied on as referable to age. Could a person say that a job advertisement requiring an excellent ability to remember names was referable to age because, at least in my case, the older I become, the fewer names I am able to remember. Perhaps, however, it would be better to regard Homer as a case specifically about the link between age and retirement.

Having concluded that Mr. Homer had been subjected to discrimination, the Supreme Court also took a different view on the question of justification and remitted that issue to the tribunal.

The judgment makes use of the familiar, but so difficult to apply in practice, language of proportionality and appropriate means of achieving legitimate ends. It does, however, contain some more helpful , practical language. Lady Hale spoke of a comparison between the impact of the criterion on the affected group and the importance of the aim to the employer. She did not, and perhaps could not, provide guidance as to how these two quite different things could be compared.

The judgments also contain some helpful kernels which may fall to be further considered in later cases. What is the position where eliminating a PCP which is discriminatory on grounds of age puts others at a disadvantage? Lord Hope said that discrimination could not be justified just because eliminating it would put others at a disadvantage for a reason not related to a protected characteristic. However, he also accepted that the fact that there might be such an effect could have an impact when justification is looked at ‘more broadly’.

Lord Mance was more forthright. He expressed the concern that if an exception to the requirement to have a law degree was made for Mr. Homer or those within 4 or 5 years of retirement, this could discriminate against others who would say they were equally well qualified for the job, although they lacked a law degree, and that the requirement should also be waived for them.

It will be interesting to see how the tribunal grapples with that question.

Clive Lewis QC appeared for the Chief Constable.

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