News and Events

Age Discrimination

  • Posted

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

The Supreme Court has handed down its decision in Homer v Chief Constable of West Yorkshire Police on the scope of indirect discrimination on the ground of age.

At the age of 51 Homer began working for the Police National Legal Database. He had no degree in law, but, when he was appointed, a law degree was not a requirement of the job, provided the postholder had other qualifications and exceptional skills or experience in criminal law. Homer had those experience and skills. A new grading structure was then introduced. There were three promotion thresholds, the third and final one requiring a law degree. Because of this requirement Homer could not get to level three unless he embarked on a part time law degree alongside his day job, which would have taken 4 years. When the new requirement came in Homer was 62, and being required to retire at 65 (this was before the abolition of the default retirement age), he would not have been able to enjoy the level three promotion before he had to leave PNLD.

He brought a claim of age discrimination under the Employment Equality (Age) Regulations 2006 (see now Equality Act 2010). His claim was for indirect discrimination in that he had been subject to a provision, criterion or practice which put persons of his age group (including him) at a particular disadvantage compared with other persons.

The EAT and Court of Appeal had rejected Homer's claim. Their view was that what put Homer at a disadvantageous position was not his age, but his impending retirement. His position was therefore comparable with any other employees nearing the end of their employment, for whatever reason.

The Supreme Court (Lords Hope, Brown, Mance, Kerr and Lady Hale) disagreed with this analysis and upheld Homer's appeal. Persons in the position of Homer were disadvantaged because of a reason (retirement) that directly related to their age. It could not be correct to equate leaving because of impending retirement with other reasons for doing so. Lady Hale also points out that the form of words used in the Age Regulations (see now the EA 2010) were intended to make it easier, rather than more difficult, to establish indirect discrimination.

Although Homer was indirectly discriminated against on ground of age it was still open for the employer to justify the discriminatory requirement. That issue was remitted to the employment tribunal for consideration in the light of the Supreme Court's findings.