Harrod v Chief Constable of West Midlands Police

The Court of Appeal dismissed the appellants' challenge to the compulsory retirement of officers effected pursuant to Regulation A19 of the Police Pensions Regulations 1987, holding that the use of A19 as the method of achieving workforce reductions was a proportionate means of achieving a legitimate aim. The court treated the relevant PCP as the use of the A19 power by the Forces to achieve maximum practicable reductions in officer numbers and concluded that, given the legal constraints on dismissing serving officers, that aim was legitimate and A19 was the only lawful route to achieve it. The tribunal was criticised for substituting its own view about how many officers needed to be retired and for focusing on the decision-making process and possible alternatives (asking officers their intentions, part‑time working, career breaks) rather than on whether the Forces' choice of method was proportionate. The court also discussed section 19 of the Equality Act 2010 (indirect discrimination), Regulation A18 and A20 of the 1987 Regulations, and noted but did not decide the Schedule 22(1) point in the Equality Act.

This was a class action alleging indirect age discrimination by police forces arising from the widespread use, in 2010-11, of Regulation A19 of the Police Pensions Regulations 1987 to require compulsory retirement of officers who had accrued 30 years' pensionable service and were therefore entitled to a pension of two thirds average pensionable pay ("2/3 APP").

Background and parties:

• The claimants were 21 members of the Police Superintendents Association and 212 officers of the federated ranks. The claims related to enforced retirements of officers as young as 48 who had accrued 30 years' service.
• The Employment Tribunal (Central London) after a five week hearing upheld the claims on 5 February 2014, finding the near-universal application of A19 by a number of Forces was not a proportionate means of achieving a legitimate aim.
• Langstaff J, President of the Employment Appeal Tribunal, allowed the Forces' appeals by judgment on 8 July 2015 and dismissed the claims; permission to appeal to the Court of Appeal was granted on 23 September 2015.

Issues framed:

• Whether the relevant PCP was Regulation A19 itself or the Forces' practice of applying A19 to nearly all eligible officers.
• Whether the application of the PCP constituted indirect age discrimination under section 19 Equality Act 2010 and, if so, whether it was a proportionate means of achieving a legitimate aim.
• Whether the Employment Tribunal had erred in scrutinising the decision-making process and in substituting its own view as to the numbers of dismissals required.
• Secondary issues included whether the discrimination might be direct, and whether Schedule 22 paragraph 1 of the Equality Act provided a defence for actions done pursuant to an enactment.

Court's reasoning:

• The Court of Appeal identified the PCP as the Forces' use of the A19 power to achieve maximum practicable reductions in officer numbers; that aim was legitimate in the context of the Comprehensive Spending Review-driven budget cuts.
• Given the statutory constraints on dismissing serving officers, A19 provided the only lawful route to effect mass reductions in officers; accordingly its use could not be said to be disproportionate merely because the tribunal considered that fewer compulsory retirements might have sufficed.
• The Employment Tribunal had erred by focusing on alternatives and the decision-making process and thereby substituting its own view of how many officers should be dismissed, contrary to established authority (including HM Land Registry v Benson and West Midlands Police v Blackburn) that tribunals should not second-guess legitimate management/resource allocation decisions by requiring absolute or stricter necessity.
• The court left open the classification question (direct v indirect) as unnecessary to the outcome and noted Schedule 22(1) of the Equality Act was raised but not argued and therefore not decided.

Relief sought: The claimants sought declarations and remedies for age discrimination arising from compulsory retirements under Regulation A19. The Court of Appeal dismissed their appeal.

Appeal dismissed. The Court held that the PCP to be justified was the Forces' choice to use Regulation A19 to achieve maximal practicable reductions in officer numbers; that aim was legitimate and, given statutory constraints on dismissing serving officers, A19 was a proportionate means of achieving it. The Employment Tribunal had erred by substituting its own view of how many officers needed to be retired and by over-scrutinising process and alternatives rather than the lawfulness of the method chosen.

Employment Tribunal (Central London) judgment 5 February 2014 upheld the claims (UKEAT/0189/14/DA as listed on the cover sheet). Employment Appeal Tribunal (Langstaff J) allowed the Forces' appeals on 8 July 2015 and dismissed the claims. Permission to appeal to the Court of Appeal was granted on 23 September 2015 (Dame Janet Smith).