Homer v Chief Constable of West Yorkshire Police

A neutral criterion is indirectly age discriminatory where it places employees nearing compulsory retirement at a particular disadvantage because they lack sufficient time before retirement to satisfy it. The comparison cannot remove age from the analysis by grouping them with younger employees who suffer a similar consequence for unrelated reasons.

Justification requires the employer to establish that the criterion is appropriate and reasonably necessary to achieve a legitimate aim. The tribunal must independently weigh the employer’s real need against the discriminatory impact and consider less discriminatory alternatives. An adjustment answering the discrimination claim must apply consistently to everyone adversely affected by the criterion, rather than constitute a purely personal exception.

Homer v Chief Constable of West Yorkshire Police concerned a highly experienced legal adviser who was denied access to the highest grade because he lacked a law degree. He could not obtain one before reaching the employer’s normal retirement age of 65.

The Employment Tribunal found indirect age discrimination which was not justified. The Employment Appeal Tribunal held that there was no indirect discrimination, although any discrimination would not have been justified: [2009] ICR 223. The Court of Appeal dismissed the employee’s appeal and the employer’s cross-appeal: [2010] EWCA Civ 419, [2010] ICR 987.

The central questions were whether the degree requirement placed employees aged 60 to 65 at a particular disadvantage within regulation 3 of the Employment Equality (Age) Regulations 2006 and, if so, whether the requirement was objectively justified.

1. Disposition. The Supreme Court unanimously allowed the employee’s appeal on indirect discrimination. The issue of justification was remitted to the Employment Tribunal because neither that tribunal nor the Employment Appeal Tribunal had undertaken the required structured proportionality assessment.

2. Indirect discrimination. Lady Hale, with whom Lord Brown and Lord Kerr agreed, held that the degree requirement particularly disadvantaged employees approaching compulsory retirement because they lacked time to obtain the qualification before retirement. Lord Hope agreed entirely, and Lord Mance agreed with this conclusion. Retirement could not realistically be separated from age where the employee was approaching a mandatory retirement age and any extension depended upon the employer.

   The comparison required by regulation 3(2) could not be reformulated by grouping the affected older employees with younger people who might leave employment for unrelated reasons. Those circumstances were materially different. Indirect discrimination scrutinises apparently neutral criteria which in practice work to the comparative disadvantage of persons sharing a protected characteristic.

3. Legitimate aim and proportionality. The aims capable of justifying indirect discrimination are broader than those applicable to direct age discrimination and may include a real business need, consistently with Bilka-Kaufhaus GmbH v Weber von Hartz, Case 170/84, [1987] ICR 110. Recruitment and retention of appropriately qualified staff were legitimate aims. Their proportionality nevertheless had to be assessed separately in relation to recruitment, the retention of recent recruits and the retention of experienced existing employees.

4. Drawing on R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293 and de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, the court held that a measure must be appropriate and reasonably necessary. The tribunal must determine whether the objective is sufficiently important, whether the measure is rationally connected to it and whether it goes no further than necessary. Under Hardy & Hansons plc v Lax [2005] EWCA Civ 846, it is insufficient that a reasonable employer could regard the criterion as justified; the tribunal must itself weigh the undertaking’s real needs against the discriminatory effects.

5. The tribunals had not properly compared the denial of higher-grade salary and pension benefits with the importance of the employer’s aims or considered less discriminatory alternatives, including a possible grandfather provision. An ad hominem exception was not the answer to the discrimination claim because any remedial exception had to extend to everyone adversely affected by the rule. Lady Hale observed that a personal exception might separately be made outside the claim if it caused no prohibited discrimination; Lord Mance cautioned that an individual or retirement-age exception might itself discriminate unjustifiably against similarly qualified younger employees.

1. United Kingdom Supreme Court: Unanimously allowed the employee’s appeal from [2010] EWCA Civ 419. It held that the degree requirement was indirectly age discriminatory and remitted justification to the Employment Tribunal.
2. Court of Appeal: Dismissed both the employee’s appeal and the employer’s cross-appeal, holding that there was no indirect age discrimination but that any discrimination would not have been justified: [2010] EWCA Civ 419, [2010] ICR 987.
3. Employment Appeal Tribunal: Held that there was no indirect age discrimination, although any such discrimination would not have been justified: [2009] ICR 223.
4. Employment Tribunal: Held that the degree requirement indirectly discriminated against the employee on grounds of age and was not objectively justified.