Chief Constable of West Midlands Police v Harrod

In an age-discrimination justification case, the tribunal must assess the measure actually adopted against the employer’s legitimate aim. It must not substitute a different scheme or require proof that the chosen allocation of resources was absolutely necessary. The relevant question is whether the measure was appropriate and reasonably necessary, balancing the importance of the aim against the discriminatory impact.

Justification is assessed objectively by reference to the outcome, not the quality of the decision-making process. Evidence of the employer’s reasoning may assist the tribunal, but subjective failures do not determine the issue. Where Parliament has fixed the discriminatory criterion and the employer’s measure is the only means of achieving the required certainty of savings, the measure may be proportionate.

Five police forces used regulation A19 of the Police Pensions Regulations 1987 to require retirement of officers who had become entitled to a pension worth two-thirds of average pensionable pay. The forces were seeking staffing reductions and budgetary savings following substantial public spending cuts.

Employment Tribunals upheld the officers’ indirect age-discrimination claims. They held that the widespread use of A19 was not a proportionate means of achieving a legitimate aim, and identified less discriminatory alternatives. The forces appealed, arguing that the tribunal had substituted a different scheme, applied excessive scrutiny and concentrated on the decision-making process rather than objective justification.

1. Appeal allowed. The tribunal’s decision was reversed and the claims were dismissed. Remission was unnecessary because the evidence established that certainty of staffing and budgetary reduction was an essential part of the forces’ aim, and no alternative provided that certainty.
2. Under section 19(2)(d) of the Equality Act 2010, the tribunal had to decide whether the use of A19 was a proportionate means of achieving a legitimate aim. The aim could be expressed broadly as efficiency or more specifically as achieving efficiency through certain staffing reductions. The distinction between aim and means was not decisive where the balancing exercise was properly undertaken.
3. The tribunal had to assess the scheme actually adopted. It was not entitled to require the forces to adopt voluntary retirement, part-time work, career breaks or selective retirement if those alternatives could not deliver the required certainty. The principles in HM Land Registry v Benson and Chief Constable of West Midlands Police v Blackburn required respect for the employer’s choice as to resource allocation, subject to objective proportionality review.
4. Justification concerns the outcome, not the decision-making process. It was irrelevant whether the forces had appreciated the discrimination, obtained legal advice, or considered alternatives at the time. Such evidence could assist the tribunal, or prompt closer examination of a proposed alternative, but could not replace the objective assessment.
5. The discriminatory disadvantage was inherent in A19’s 30-year-service and pension threshold, which Parliament had deliberately selected to provide a financial cushion for officers compulsorily retired. The tribunal imposed too high a standard of scrutiny by failing to take that legislative policy sufficiently into account and by treating the effect on a larger cohort as multiplying the individual discriminatory impact.
6. As a post-script, the judge expressed the tentative view that the threshold operated as direct rather than indirect age discrimination because it inevitably distinguished between officers below and above the relevant age threshold. That view was not part of the ratio.

1. Employment Appeal Tribunal: allowed the forces’ appeal against the Employment Tribunal’s decision, reversed that decision and dismissed all claims.
2. Employment Tribunal: held that the practice of requiring retirement of officers eligible for regulation A19 was not a proportionate means of achieving a legitimate aim.