Harrod & Ors v Chief Constable of West Midlands Police & Ors (Rev 1)

In an indirect discrimination claim, the court must identify the provision, criterion or practice which causes the disparate impact. Where dismissals are required, the discriminatory measure is ordinarily the method of selecting those dismissed, rather than the employer’s decision about the number of posts to remove.

An employment tribunal may test whether the selection method proportionately pursues a legitimate aim. It may not reject the employer’s justification because the employer could have pursued a different aim involving fewer dismissals. Where statute supplies the only lawful method of achieving a legitimate workforce-reduction aim, using that method is proportionate despite its age-related impact.

Police officers brought test claims for indirect age discrimination after five police forces used Regulation A19 of the Police Pensions Regulations 1987 to require the retirement of nearly every officer entitled to a pension of two thirds of average pensionable pay. The forces sought substantial and certain reductions in expenditure and officer numbers following budget cuts.

The Employment Tribunal upheld the claims, finding that the forces had not shown the near-universal use of Regulation A19 to be appropriate and necessary. The Employment Appeal Tribunal, Langstaff J, allowed the forces’ appeals and dismissed the claims in UKEAT/0189/14/DA.

The officers appealed. The central issue was whether justification required the forces to defend the number of compulsory retirements and their failure to adopt alternatives, or only the age-related method by which officers were selected.

1. Appeals dismissed. The Employment Appeal Tribunal correctly held that the forces had objectively justified the use of Regulation A19 of the Police Pensions Regulations 1987. Bean, Underhill and Elias LJJ agreed that the Employment Tribunal had addressed the wrong question.

2. The necessary starting point under section 19 of the Equality Act 2010 was to identify the provision, criterion or practice producing the disparate impact. Fine distinctions between a provision, criterion and practice were unhelpful. The relevant measure was the use of Regulation A19 to select officers for compulsory retirement. Its criterion necessarily disadvantaged older officers because it applied only to those entitled to two thirds of average pensionable pay.

3. The forces’ legitimate aim was to secure the maximum practicable reduction in officer numbers, with certainty of the associated savings. Management was entitled to determine the required headcount reduction and allocation of resources. Discrimination law did not authorise a tribunal to decide that fewer employees should have been dismissed or that management should have pursued a different, less ambitious aim.

4. The selection method was proportionate. Police officers were office-holders with statutory security of tenure, and Regulation A19 was the only lawful means by which serving officers could be removed on a mass basis. Once the forces legitimately decided the scale of the reduction, they could select only officers satisfying the statutory pension criterion. The suggested alternatives of voluntary retirement enquiries, part-time work and career breaks addressed whether fewer officers should leave; they did not provide another lawful selection method capable of achieving the forces’ aim.

5. The court left open whether the discrimination was properly classified as direct rather than indirect. The proceedings had been conducted throughout as indirect discrimination claims, and the classification did not affect the outcome. It also left open whether Schedule 22 paragraph 1 of the Equality Act 2010 supplied an additional defence where the statutory requirement governed the selection criterion.

1. Court of Appeal (Civil Division): Dismissed the officers’ appeals and affirmed the dismissal of their indirect age discrimination claims: [2017] EWCA Civ 191.

2. Employment Appeal Tribunal: Langstaff J allowed the chief constables’ appeals and dismissed the claims, holding that the use of Regulation A19 was appropriate and reasonably necessary: UKEAT/0189/14/DA.

3. Employment Tribunal: Upheld the test claims, holding that the practice of retiring nearly every eligible officer under Regulation A19 had not been shown to be a proportionate means of achieving a legitimate aim.