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On appeal from: [2010] EWCA Civ 419

The appellant had worked for the Police National Legal Database (PNLD) as a legal advisor, and when he was appointed the post did not require a law degree or equivalent if the post-holder had exceptional experience combined with a lesser qualification in law. In 2005 the PNLD introduced a new grading structure which set out three promotion criteria above the starting grade, the top tier of which required a law degree, and the applicant was re-graded as reaching the first and second thresholds but not the third, despite previously being effectively at the top grade under the previous structure. The applicant objected to being required to study for a law degree as it would take four years part-time and he was due to retire at 65 in three years’ time, so would have been unable to benefit from it. His internal appeals were dismissed and he issued proceedings for indirect discrimination under the Employment Equality (Age) Regulations 2006, SI 2006/1031.

The Supreme Court unanimously allowed the appeal, the appellant was indirectly discriminated against by the PNLD; the case was referred to an Employment Tribunal to reconsider the issue of justification. The leading judgment disagreed with the reasoning in the EAT and CoA that any disadvantage was not due to the applicant’s age but his impending retirement, as this ignores that the issue of retirement is directly related to the applicant’s age. The choice of words in the 2006 Regulations were intended to make it more straightforward to establish claims of indirect discrimination, with claimants simply having to establish they and persons of their age group were disadvantaged when compared with other persons – an “attempt to level the playing field”.

On the justification issue, it was noted that the range of aims capable of justifying indirect discrimination was greater than those available in the context of direct discrimination. In addition to pursuing a legitimate aim, the treatment must be proportionate – both an appropriate means of achieving the legitimate aim and reasonably necessary in order to do so. The question for the ET was whether it is reasonably necessary in order to achieve the legitimate aims of the scheme to deny those benefits to people in the applicant’s position.

For judgment, please download: [2012] UKSC 15
For Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII