No age discrimination when employee unable to obtain degree before retirement
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28.5.2010 In Homer v Chief Constable of West Yorkshire Police, the Court of Appeal held that a tribunal was wrong to find that an employee in his 60s, who would have been unable to complete a degree before he retired, had been indirectly discriminated against on grounds of age when his employer required possession of a degree for admittance to the highest level of its career structure. Under the Employment Equality (Age) Regulations 2006 (“the Regulations”), "A" indirectly discriminates on grounds of age where A applies a provision, criterion or practice (“PCP”) to "B" which A applies or would apply equally to persons not of the same age group as B but which: • Puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons; • Puts B at that disadvantage; and • A cannot show the PCP to be a proportionate means of achieving a legitimate aim. Mr Homer joined the Police National Legal Database (“PNLD”) as a legal adviser. When he was appointed, legal advisers were required to have either a law, or equivalent, degree (which Mr Homer did not have) or "exceptional experience/skills in criminal law, combined with a lesser qualification in law" (which he had). Mr Homer declined PNLD's offer to pay for him to do a law degree: he did not want the burden of doing a part-time degree and, in any event, he would not qualify until after he was 65 (PNLD's normal retirement age). He was unaware that having a degree could have any practical significance for his job. PNLD later increased pay levels and introduced salary increments as part of a "three thresholds" career structure. Mr Homer successfully applied to be treated as complying with the first two thresholds. However, his application in respect of the third failed because he did not have a law degree. His internal appeal was rejected and Mr Homer presented a tribunal claim for indirect age discrimination. The Tribunal held that the need for members of Mr Homer's age group (those between 60 and 65) to have a law degree would put them, and did put Mr Homer, at a "particular disadvantage" when compared with other people. Although recruiting and retaining staff of the appropriate quality was a legitimate aim, the criteria used by PNLD to achieve it had not been proportionate. The EAT allowed the appeal, holding that the tribunal had erred in finding that there had been a particular disadvantage. While the need for a degree imposed a barrier, it applied to everyone in the same way and it was not, in principle, any more difficult for an older person to obtain the qualification than it was for a younger person. The Court of Appeal noted that the object of the Employment Equality (Age) Regulations 2006 is not to legislate against the general unfairness of age (whether young or old). The Court of Appeal agreed with the EAT that the barrier to the employee's appointment was not age but his impending retirement before he could obtain the relevant qualification. This bulletin is for general guidance purposes only and should not be used for any other purpose.
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