Never too late to try something new?

24 May 2012

It seems that the case of Homer v Chief Constable of West Yorkshire Police has been going on since the invention of employment law itself.

Mr Homer has pursued his case through the Employment Tribunal, the Employment Appeals Tribunal, the Court of Appeal and the Supreme Court.  What was it that caused Mr Homer to start this Iliad-like tour of the legal system?  The requirement to hold a law degree.

By way of a brief background, the Claimant had been a Policeman for 30 years and upon retirement, became a Legal Advisor in the Police National Legal Database (PNLD).  At the time of his appointment, Legal Advisors in the PNLD were required to:

– hold a law degree;

– hold the equivalent of a law degree; or

– have 'exceptional experience/skills in criminal law, combined with a lesser qualification in law'

Clearly, with his experience in the Police Force, the Claimant could be considered to fulfill the last criteria.

In 2005, the PNLD initiated a restructure in which Legal Advisors were divided into three grades, the highest of which required the Advisor to hold a law degree.  As the Claimant did not hold a law degree, he was placed into the second grade.  The PNLD offered to fund the Claimant in obtaining a law degree, but, unfortunately, by the time the Claimant completed it, he would have passed the, then, default retirement age of 65 and, therefore, his degree would have been somewhat pointless for the purposes of the PNLD grade bands.

The Claimant claimed that the requirement to hold a law degree put him at a disadvantage due to his age as he would not be able to obtain the degree before his retirement.  This was an argument which the Tribunal agreed with, but the Employment Appeals Tribunal and the Court of Appeal did not: they found that the disadvantage was due to the Claimant being due to leave work shortly, not his age.  They found that the Claimant was in no worse situation than an individual who would be leaving their employment shortly for a reason other than retirement, perhaps to look after their family.

The Claimant appealed to the Supreme Court, who found that it was not realistic to separate age and retirement as the two are so intrinsically linked.  Consequently, the Supreme Court found that the requirement to hold a law degree was discriminatory on the grounds that people aged between 60 and 65 did not have time to acquire a law degree.  As they were soon to reach the age of retirement.

As the discrimination complained of is indirect, the Employment Tribunal have been asked to consider whether the requirement can be justified and we should receive a response to this shortly.

Our view:

Ultimately, the facts of this case are unlikely to repeat themselves now that the statutory default retirement age has been abolished; however, this case goes to show how strictly the courts will interpret indirect discrimination: if a provision, criteria or practice puts a protected group at a disadvantage, it will be discriminatory unless the provision, criteria or practice can be justified as a proportionate means to achieve a legitimate aim.

This means that, whenever an employer is considering putting in place a policy it will need to consider whether it will negatively impact on a protected group and, if so, it must consider whether there are any non-discriminatory alternatives (in this case, perhaps, a grandfather clause could have been used for existing staff doing the job but with no law degree). 

If there are genuinely no alternatives, then the employer should make a note of why the policy is necessary and any alternatives that were considered (and why they were not feasible) so that they are to hand in the event that the policy is challenged before a Tribunal.

This case also demonstrates the blunt tool that was the default retirement age: if the Claimant had continued in his role as legal advisor, post default retirement age, with the tenacity with which he has pursued this case there is no doubt that he would have been an asset to anyone he was advising: the PNLD’s loss is case law’s gain!