On 17 to 19 January 2012, the Supreme Court heard an appeal in the case of Homer v Chief Constable of West Yorkshire Police and Seldon v Clarkson Wright and Jakes. This case concerned a 61 year old employee who alleged that he was indirectly discriminated against on the grounds of age by the introduction of a policy in his workplace that stipulated that those employed in its top tier should have a degree; which the claimant did not have and was unable for reasons of timing to obtain before he retired.

The central issue to be considered by the Supreme Court was whether the Court of Appeal came to the wrong conclusion in determining that the introduction of this policy – and the “particular disadvantage” at which it put the claimant – did not indirectly discriminate against the Claimant on the grounds of his age, but simply put him at the disadvantage because he was due to retire soon; part of the “general unfairness of age”.

The facts

The claimant worked as a police officer for 30 years, after which he started working as a legal adviser with the Police National Legal Database (“PNLD”), providing legal advice to police forces across England and Wales. At this time, there were different routes to securing this position. Candidates either required a law degree, or (as in the case of the claimant) individuals with exceptional experience in criminal law, combined with lesser legal qualification, were deemed to be qualified for the role.

In 2004, the qualifying criteria for becoming an adviser with the PNLD changed so that a law degree was “essential”. This change did not, however, affect the claimant. At this point, the claimant declined PNLD’s offer to pay for him take a law degree on a part-time basis, since he would not have completed the course before his retirement at the age of 65.

In 2005, when the claimant was 61, the PNLD implemented a new graded career structure containing the provision that employees required a law degree to reach the top tier of this structure. The claimant’s application to be regarded as in the top tier was rejected, along with his appeal and grievance. The claimant then subsequently submitted a claim in the Employment Tribunal stating that such a requirement of him – when he would not have time to attain a degree before retirement – amounted to indirect age discrimination, contrary to reg 3(1)(b)(i) of the Employment Equality (Age) Regulations 2006 (the “EE(A)R”).

The law

Reg 3(1)(b)(i) of the EE(A)R (which was the law in place at the time, prior to its provisions being incorporated into the Equality Act 2010) states that a person (A) indirectly discriminates against another person (B) if A applies to B a provision, criterion or practice (“PCP”) which he applies equally to persons not of the same age group as B, but which (1) would put B at a particular disadvantage when compared with other persons, and (2) actually puts B at that disadvantage, and (3) A cannot show the PCP to be a proportionate means of achieving a legitimate aim.

The Employment Tribunal decision

The ET held that the PNLD had applied a PCP (namely, that an employee required a law degree to reach the top tier in their organisation), that unfairly prejudiced people in the claimant’s age group (60 – 65), as they would not have time to complete a law degree before they retired. This meant that the PNLD had put the claimant’s age group at a “particular disadvantage” under reg 3(1)(b)(i) as this age group were prevented from reaching the top tier in the PNLD. The ET drew a comparison against an age group of individuals aged 30 – 59 years old (deeming 30 to be the minimum age a person could be to achieve sufficient experience to be considered for the role) who would have sufficient time to complete the degree and then enjoy the greater pay and benefits afforded by the higher employment tier. On this basis, the ET found that the PNLD had indirectly discriminated against the claimant on the grounds of his age.

The ET stated that whilst they were fully satisfied that the PNLD had implemented the PCP for a legitimate aim, the provision was not proportionate. The PNLD appealed to the Employment Appeals Tribunal on the basis that the claimant had suffered a “particular disadvantage” by virtue of the PCP adopted by the PNLD due to his age.

The Employment Appeal Tribunal decision

The EAT allowed the PNLD’s appeal, finding that the ET had erred in respect of its approach to the “particular disadvantage” issue, in that they held that the PCP of requiring a degree for a promotion challenged people of all age groups equally, and that although claimant was so close to retirement age that he could not benefit from the law degree once he had achieved it, the same could be said of any benefit achieved by a younger person, who would then have a longer period of time to enjoy it. The EAT held that “the financial disadvantage . . . resulting from the operation of this criterion is the inevitable consequence of age; it is not the consequence of age discrimination.” The claimant appealed to the Court of Appeal submitting that the ET had not erred in its approach to the claimant’s “particular disadvantage”.

The Court of Appeal decision

The Court of Appeal dismissed the claimant’s appeal and upheld the EAT’s judgment. Lord Justice Mummery agreed that the way in which the PCP put members of the claimant’s age group at a particular disadvantage was through the fact that they retired at 65, which was “not a disadvantage resulting from age, but from the fact of impending withdrawal from the workplace at 65 . . . The object of the 2006 Regulations is not to legislate against the general unfairness of age . . . the targets of anti-discrimination law are more precise.”

Appeal before the Supreme Court

The claimant subsequently appealed to the Supreme Court on the issue of whether the introduction and application of the law degree PCP put the claimant and others in his age group at a “particular disadvantage”.

Commentators have suggested that it may have been wiser for the claimant to have argued a more conventional case of indirect discrimination – as Mummery LJ noted in the Court of Appeal’s judgment, the claimant did not argue that those in his age group were less likely to have a degree and therefore would find it harder to qualify for the top tier. This argument was successfully run in McCluskey v Edge Hill University (ET Case No. 2405206/07), (although ultimately the employer succeeded in defending the claim on the basis that such a PCP amounted to a proportionate means of achieving a legitimate aim).

Should the claimant fail in his appeal, the court’s interpretation of reg 3(1)(b)(i) of the EE(A)R (and accordingly the Equality Act 2010) will limit the circumstances in which claimants nearing retirement age may successfully bring proceedings for indirect age discrimination, as they will have to show that they were placed at a disadvantage on the grounds of age, but not simply because they were due to retire. However, this claim was decided in the context where a default retirement age was still lawful; now, under the Equality Act 2010, it will be unlawful to impose retirement on an employee unless it is objectively justified.

The repeal of the default retirement age obviously puts an additional complexion on this claim. In the absence of an employer justified retirement age theoretically it may be the employee’s choice when they retire. This will mean that the employer will find it easier to assert that the employee was not put at a particular disadvantage by their impending retirement date, because that date was under their control. Ironically, this could mean that the repeal of the default retirement age – seen as a great step forward in terms of combating age discrimination – will have the effect of making it harder for an employee to claim indirect age discrimination.