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Indirect Discrimination

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In an indirect discrimination claim, can an employment tribunal reject a justification defence on the basis that the employer should have pursued a different aim which would have had a less discriminatory impact?

No, held Court of Appeal in Harrod v West Midlands Police

The Claimants were police officers across a range of ranks and forces, compulsorily retired under Rule A19 of the Police Pensions Regulations 1987, which permitted compulsory retirement of officers 'in the interests of efficiency' at 30 years' service (see  previous bulletin).  This was potentially indirectly discriminatory on grounds of age.  But there was no other way to dismiss police officers and cost savings had to be made, so the use of Rule A19 was held to be justified.

Bean LJ drew an analogy with a redundancy situation (paras. 28-31) and the prohibition on employment tribunals investigating the commercial or economic reasons which prompt the closure of a business or a reduction in the workforce. Here, a statutory provision made it unlawful to include anyone with less than 30 years' service in a pool, so the selection method would be inevitable and a claim for unfair dismissal or age discrimination would fail.

Practitioners may note the Court found it unhelpful to analyse distinctions between a 'provision', 'criterion' or 'practice' in indirect discrimination cases and opted for 'PCP'.

Thanks to Ed McFarlane of Deminos HR for preparing this case summary.