The Supreme Court has given useful guidance on how employment tribunals should approach cases involving indirect age discrimination
In Homer v Chief Constable of West Yorkshire Police, Mr Homer had been a police inspector for 30 years before joining as a civilian legal adviser in 1995.
In 2005, in order to improve recruitment and retention of suitable candidates for legal posts, the police introduced a new policy under which only those who had law degrees could achieve the highest increment on the salary scale.
Mr Homer was 62 at the time the new policy was introduced and it would have taken him 4 years to complete a law degree. This was a year after he would have reached the police's compulsory retirement age of 65.
He was rejected for a final increment on the salary scale because he did not have a degree and although he had exceptional experience in criminal law, the police felt obliged to follow their new rules.
An employment tribunal found that Mr Homer had suffered indirect age discrimination. The requirement to hold a law degree put people in Mr Homer's age group (60-65) at a particular disadvantage because of the mandatory retirement age of 65 and the fact that a law degree took 4 years to complete.
The employer had not shown that the measures it took were a proportionate means of achieving a legitimate aim as it had not considered alternative ways, for example, making an exception in Mr Homer's case.
The Employment Appeal Tribunal and Court of Appeal both decided that the employment tribunal was wrong: there had been no indirect discrimination. The Court of Appeal agreed with the Employment Appeal Tribunal that the problem was not Mr Homer's age but his impending withdrawal from the workplace. However, they also found that if there had been indirect discrimination, the tribunal was entitled to find that it was not justified.
Mr Homer appealed to the Supreme Court.
Supreme Court decision
The police argued that Mr Homer should be compared with anyone else nearing the end of their employment for whatever reason, not just retirement. Anyone who was contemplating leaving within a similar period, for example, for family reasons, would face the same difficulty of not being able to qualify for a law degree.
The Supreme Court upheld Mr Homer's appeal and held that the requirement to have a law degree was indirectly discriminatory to people in Mr Homer's age group. It rejected the police's argument and said it was not valid to compare those who had a choice in the matter to those who were "running up against the buffers at mandatory retirement age", their circumstances were materially different.
It also rejected the Court of Appeal's logic that it was not Mr Homer's age but his impending retirement which put him at a disadvantage. It held that in reality there was little difference between the fact of someone's age and their retirement.
The Supreme Court remitted the case to the employment tribunal to determine whether there was objective justification for the policy as it did not consider that it had done so initially, "in a suitably structured way". The Supreme Court went on to give helpful guidance as to how that question should be approached. It considered that,
"To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so. Some measures may simply be inappropriate to the aim in question: thus, for example, the aim of rewarding experience is not achieved by age related pay scales which apply irrespective of experience.; the aim of making it easier to recruit young people is not achieved by a measure which applies long after the employees have ceased to be young."
It is clear that the real battle ground in indirect age discrimination claims is becoming the issue of proportionality i.e. whether the measures adopted to achieve the employer's legitimate aim(s) were appropriate and reasonably necessary. It is therefore helpful to have authority from the Supreme Court on how tribunals should approach that question. However, this is clearly not an easy question to answer. Due to the fact specific nature of these cases it is likely to remain difficult for employers to decide whether or not their employment policies, procedures and requirements are proportionate if these are challenged as indirectly discriminatory.