Homer v Chief Constable of West Yorkshire

The claimant, a long-serving member of staff of the Police National Legal Database, was denied regrading to a newly created highest threshold because he did not hold a law degree. The Supreme Court held that the denial operated as indirect discrimination on grounds of age under the Employment Equality (Age) Regulations 2006 (in particular regulation 3 read with regulation 7), because employees nearing the compulsory retirement age were placed at a particular disadvantage: they had insufficient time to obtain the requisite qualification before retirement.

The court rejected the respondent’s contention that the relevant disadvantage was the claimant’s impending retirement rather than his age, explaining that impending retirement is materially linked to age and that the comparator must reflect the protected characteristic. The court further held that justification requires the tribunal to apply the established proportionality analysis (legitimate aim; appropriateness; necessity/no more than reasonably necessary) and remitted the question of justification to the Employment Tribunal for reconsideration, because the tribunal had not addressed the proportionality questions in a suitably structured way.

Background and facts:

• Mr Homer retired from the police in 1995 and was employed by the Police National Legal Database (PNLD) as a legal adviser. The PNLD later restructured pay and grading and introduced a requirement of a law degree for entry to the highest (third) threshold. Mr Homer, although experienced and otherwise qualified, did not have a law degree and was denied regrading to the third threshold in 2006. He expected to retire at the normal retirement age of 65 in 2009, so could not realistically obtain a law degree before retirement.
• Procedure: Mr Homer issued proceedings in the Employment Tribunal in 2007 alleging unlawful age discrimination. The Employment Tribunal found indirect discrimination which was not objectively justified. The Employment Appeal Tribunal reversed the finding of discrimination but held that, if discrimination had occurred, it would not have been justified ([2009] ICR 223). The Court of Appeal dismissed both appeals ([2010] EWCA Civ 419, [2010] ICR 987). The case came to the Supreme Court on appeal.

Nature of the claim/application:

The claimant alleged unlawful indirect discrimination on grounds of age under the Employment Equality (Age) Regulations 2006, arising from the application of a neutral criterion (requirement of a law degree) which put a particular age group at a disadvantage.

Issues framed by the court:

1. Whether the denial of regrading amounted to indirect discrimination on grounds of age under regulation 3 and regulation 7 of the Age Regulations;
2. If so, whether the criterion (requiring a law degree for the third threshold) was objectively justified as a proportionate means of achieving a legitimate aim.

Reasoning and disposition:

• The Supreme Court (Lady Hale, with whom Lord Brown and Lord Kerr agreed; Lord Hope, Lord Mance concurring) held that the correct age group comparator included those aged about 60–65 who lacked time to obtain the degree before compulsory retirement. The court rejected the respondent’s argument that the disadvantage was caused by impending retirement (a reason unrelated to age) rather than age itself, finding that impending retirement is materially linked to age and so the disadvantage falls to be considered as age-related.
• The court explained that the Directive and regulation 3 were intended to capture disadvantages linked to protected characteristics even where statistical proof is absent, and that the comparator must focus on the protected characteristic rather than the proximate reason in an individual case.
• On justification, the court restated the established proportionality test (legitimate aim; appropriate means; necessary/no more than reasonably necessary), drawing on authorities such as Bilka-Kaufhaus and de Freitas. The Supreme Court found that the Employment Tribunal had not carried out a sufficiently structured proportionality assessment and therefore remitted the issue of justification to the Employment Tribunal for further consideration.
• The court also noted practical issues such as the distinction between recruitment and retention aims, the possibility of non-discriminatory alternatives (for example transitional or grandfather arrangements), and cautioned against ad hominem exceptions without regard to other employees similarly affected.

Wider context:

The court commented that the remedy for age-related criteria is still developing and may be counter-intuitive, and emphasised that age-based choices (such as retirement practices) must now be justified where they produce disadvantages associated with age.

Appeal allowed. The Supreme Court held that denying the claimant access to the highest threshold because he could not obtain a law degree before compulsory retirement constituted indirect age discrimination. The question whether the measure was objectively justified was remitted to the Employment Tribunal because the tribunal had not applied the proportionality analysis in a suitably structured way.

Employment Tribunal (January 2008) found indirect discrimination not objectively justified; Employment Appeal Tribunal [2009] ICR 223 held there was no indirect discrimination but that, if there had been, it would not have been justified; Court of Appeal [2010] EWCA Civ 419, [2010] ICR 987 dismissed both the claimant's and respondent's appeals; appeal to the Supreme Court [2012] UKSC 15 allowed in part and the justification issue remitted to the Employment Tribunal.