Homer v Chief Constable of West Yorkshire Police

For indirect age discrimination, a neutral provision, criterion or practice must place the claimant’s age group at a particular disadvantage because of its impact on age. A qualification requirement applied equally to different age groups does not create that disadvantage merely because an older employee lacks time before retirement to obtain the qualification and secure higher status or pay. The disadvantage then results from impending retirement and the shorter remaining working life, not from age discrimination. The appeal therefore failed at the particular-disadvantage stage. In an alternative discussion, the employer’s recruitment and retention aim was legitimate, and the finding that relaxation for the older group could achieve it was legally sustainable.

Mr Terence Homer was employed as a legal adviser within the Police National Legal Database. A career grading structure required a law degree or similar qualification for its third threshold. Mr Homer, aged 61 and due to retire at 65, could not complete a part-time degree before retirement.

The Employment Tribunal found indirect age discrimination under the Employment Equality (Age) Regulations 2006, finding particular disadvantage and inadequate justification. The Employment Appeal Tribunal allowed the employer’s appeal, holding that the qualification requirement applied equally to all employees and that the alleged disadvantage arose from the shorter period before retirement. The appeal concerned particular disadvantage. The respondent also challenged the proportionality finding by Respondent’s Notice.

1. Appeal dismissed. Maurice Kay LJ gave the leading reasons. Richards LJ agreed, and Mummery LJ gave separate reasons reaching the same conclusion.
2. Under regulation 3(1)(b) of the Employment Equality (Age) Regulations 2006, indirect age discrimination requires an apparently neutral provision, criterion or practice to place the claimant’s age group at a particular disadvantage compared with other age groups. The disadvantage must result from the application of the provision to age.
3. The law-degree requirement was applied equally to employees outside Mr Homer’s age group. The fact that an employee in his sixties lacked sufficient time before retirement to obtain the qualification did not make the requirement a discriminatory age barrier. The inability to obtain the higher status and remuneration resulted from impending retirement and withdrawal from the workplace, rather than from the impact of the requirement on age.
4. Maurice Kay LJ held that the alleged disadvantages relating to status and remuneration were materially the same. They amounted to a claim for more favourable treatment because of age, not a particular disadvantage for the purposes of indirect discrimination. Mummery LJ emphasised that the Regulations target disguised age barriers, not general unfairness arising from the fact that working life ends at retirement.
5. The court obtained no assistance from R (Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin). The observation that age discrimination differs from discrimination based on immutable characteristics was accepted as true, but it did not assist the interpretation of the Regulations in this private employment dispute.
6. Detailed consideration of proportionality was unnecessary because the claim failed at the first stage. Nevertheless, the employer’s aim of recruiting and retaining staff of appropriate calibre was legitimate, and the Employment Appeal Tribunal was entitled to regard a possible relaxation of the qualification requirement for the older age group as a sustainable basis for finding the measure disproportionate.

• Court of Appeal (Civil Division): Appeal dismissed: [2010] EWCA Civ 419.
• Employment Appeal Tribunal: Allowed the employer’s appeal on the issue of particular disadvantage. Its alternative conclusion that the Employment Tribunal’s proportionality finding was sustainable was not disturbed.
• Employment Tribunal: Found indirect age discrimination and held that the employer had not justified the requirement as a proportionate means of achieving a legitimate aim.