Age Discrimination - Qualifications and Pay Structure

The Supreme Court has handed down its decision in the case of Homer v Chief Constable of West Yorkshire Police, which dealt with a claim of indirect age discrimination brought under the Employment Equality (Age) Regulations 2006. The Regulations have now been replaced by the Equality Act 2010 and the claim was brought before the abolition of mandatory retirement at age 65.

The central question was whether or not the introduction of a new career pay grading scheme, which required legal advisers employed by the Police National Legal Database (PNLD) to have a degree in order to qualify for the highest pay grade, discriminated against persons aged between 60 and 65 compared with younger workers. The new scheme was introduced to combat difficulties in recruiting and retaining staff.

Terence Homer was due to retire in 2009 at the age of 65. He was 61 when the new pay scheme was introduced in 2005. He had joined the PNLD as a legal adviser after retiring from the police force, after 30 years’ service, with the rank of Detective Inspector. Although he did not have a law degree, his experience in criminal law qualified him for the post. By 2005, however, having a degree in law was a requirement of the job. In 2003, Mr Homer was told that his employer was willing to pay for him to undertake a law degree if he wished, but he did not think it was worthwhile as there was insufficient time for him to complete a part-time degree before his retirement.

Mr Homer claimed that the new career pay grading structure was discriminatory because it was a provision, criterion or practice that put persons in the same age group as himself at a particular disadvantage because they could not, in practice, benefit from gaining the necessary qualification and this lack of opportunity had the effect of eroding their status.

The Employment Tribunal (ET) upheld his claim. In its view, the introduction of the degree requirement did put Mr Homer and others in his age group at a particular disadvantage compared with younger workers in the same situation as it prevented them from reaching the highest pay threshold and also deprived them of the associated enhanced status and financial benefits. The Employment Appeal Tribunal and the Court of Appeal disagreed, however, finding that the particular disadvantage complained of in this case resulted not from Mr Homer’s age but from the fact of his impending retirement. Mr Homer took his case to the Supreme Court.

The Supreme Court ruled that Mr Homer had suffered indirect age discrimination. A requirement that works to the comparative disadvantage of a person approaching the mandatory retirement age is indirectly discriminatory on the grounds of age. The Court dismissed the argument that Mr Homer’s situation should be compared with that of a person nearing the end of their employment for some other reason, for example in order to take early retirement or for family reasons, as that person would normally have a degree of choice in the matter that was not available to someone approaching the mandatory retirement age. Indeed, such reasoning would have alarming consequences for discrimination law generally if translated into other contexts.

On the issue of justification, the Supreme Court outlined the correct approach to be taken and remitted the case to the ET for further consideration.