Age Discrimination – Qualifications and Pay Structure

The Employment Tribunal (ET) has now delivered its judgment in the long-running 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 before the abolition of mandatory retirement at age 65. The Supreme Court last year ruled that Mr Homer had suffered indirect age discrimination and remitted the case to the ET to determine whether or not the employer’s action was objectively justifiable.



The central question had been 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.



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 (PCP) 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 original ET upheld his claim, but the Employment Appeal Tribunal and the Court of Appeal both disagreed with the ET’s decision. Mr Homer took his case to the Supreme Court, which ruled that a requirement that worked to the comparative disadvantage of a person approaching the mandatory retirement age was indirectly discriminatory on the grounds of age. On the issue of justification, the Supreme Court outlined the correct approach to be taken and remitted the case to the ET to consider objective justification.



In the ET’s view, West Yorkshire Police had failed to show that the requirement that existing legal advisers had to hold a law degree in order to be eligible for progression to the highest pay grade was appropriate or reasonably necessary to achieve the legitimate aim of recruiting and retaining staff of the appropriate calibre within the PNLD.



Since the abolition of the default retirement age, an employer cannot lawfully force an employee to retire at a set age unless the age can be objectively justified under the Equality Act 2010. Employers who have chosen to adopt an ‘Employer Justified Retirement Age’ should be careful that any workplace PCP does not disadvantage those approaching the set retirement age.