Detriment was not an inevitable consequence of employee's impending retirement

Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15 

This case centred on Mr Homer’s inability to reach a higher pay grade before retirement. Mr Homer was unable to qualify for the pay grade because he had insufficient time to obtain a university degree before reaching the date on which he intended to retire.

The key issue was whether the rule requiring employees at the higher grade to hold a degree constituted indirect age discrimination or not. The courts below had concluded that it did not, because what put Mr Homer at a disadvantage was his impending retirement date rather than his age. The fact that Mr Homer was not obliged to retire when he did was influential in that conclusion.

The Supreme Court overturned the decisions of the lower courts. It held that it was not appropriate for Mr Homer to be compared to other people who were nearing the end of their employment for reasons unrelated to age (such as family or ill health) as the lower courts appeared to have done. To do this would result in the conclusion that anyone of a different age would have been treated the same as Mr Homer and therefore there was no discrimination. In the Supreme Court’s view this was artificial. Mr Homer was due to retire because of his age, and therefore his age was inextricably linked to the detriment he suffered.   

The Supreme Court referred to the alarming consequences that would result from adopting the lower courts’ approach in the context of other types of discrimination. It gave the example of a rule requiring employees to have a beard for certain roles and a claim by a woman that this was sex discrimination. The approach taken by the lower courts would result in the comparison not of women and men generally, but of the women complainant with anyone else who could not grow a beard (including very young men and men with certain types of illness). This would result in a finding that there was no discriminatory impact on women without a proper analysis. 

Implications
This case makes clear that it will not be possible to argue that a detriment is the “inevitable consequence of age” in order to defend an age discrimination claim. The Tribunal’s approach should be to compare the detriment suffered by the complainant against the position for employees in a different age group to determine whether discrimination has occurred, and not to apply to that comparator group a factor that is inherently linked to age (such as an impending retirement as in this case).

The Supreme Court left it to an Employment Tribunal to determine whether or not the requirement for a degree could be justified by the employer in this case. However, the Supreme Court notes that the problem could have been resolved in this case by the employer making alternative arrangements for people in Mr Homer’s position. This will no doubt be taken on board by the Tribunal when it comes to determine whether the approach adopted by West Yorkshire Police was lawful as a proportionate means of achieving a legitimate aim.  
 

For more information about this article, please contact Blair Adams by emailing blair.adams@dmhstallard.com

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