The Court of Appeal has ruled, in Homer v Chief Constable of West Yorkshire Police, that an employer did not indirectly discriminate on grounds of age against an employee over 60 by making attainment of a higher pay grade dependent on having a law degree.
West Yorkshire Police introduced a requirement that to be graded at the top grade for legal adviser, and to receive the higher salary linked to that grade, an employee had to have a law degree. The claimant (H), who was 61, successfully argued before an employment tribunal that this amounted to indirect age discrimination because someone in his age group would not be able to finish the course and obtain a degree before reaching the employer’s normal retirement age.
The Employment Appeal Tribunal (EAT) allowed the Chief Constable’s appeal, holding that indirect discrimination had not occurred because there was no basis for concluding that there was any ‘particular disadvantage’ which affected persons falling within the age bracket of 60-65. Any financial disadvantage resulting from the operation of the criterion because H was so close to retirement age was “the inevitable consequence of age” and “not a consequence of age discrimination”.
The Court of Appeal has now rejected H’s appeal (which was backed by the UK’s Equality and Human Rights Commission), adopting essentially the same reasoning as the EAT. According to the Court, the particular disadvantage suffered by H’s age group – i.e. inability to obtain a law degree before retirement – resulted from their impending withdrawal from the workplace rather than age. The same result would follow for employees in the comparator group who also stopped working before qualifying. Accordingly, the disadvantage suffered by H did not amount to indirect age discrimination.
The Court observed that this was the first substantive appeal to it concerning age discrimination. The distinction drawn by the EAT and the Court of Appeal is arguably rather a fine one. It seems evident that it was less easy in practicefor those aged 60 to 65 to comply with the requirement to obtain a law degree as compared to those in other age groups. It remains to be seen how far the narrow approach in Homer may create difficulties for employees claiming indirect age discrimination in other factual scenarios.
H did not claim – as he might have done – that requiring a degree was of itselfprima facie indirect age discrimination requiring justification. This would be based on the contention that the growth in higher education has resulted in significantly more younger than older workers being in possession of a degree. This argument may be addressed in future cases.