This judgment provides important guidance on the structure of the justification test for indirect age discrimination.  It complements the Supreme Court’s simultaneous judgment in Seldon, which focuses on the more stringent requirements for justifying direct age discrimination.

Facts

West Yorkshire Police introduced a requirement that to reach the top grade for legal adviser and receive the higher salary linked to that grade, an employee had to have a law degree.  Mr Homer, who was 61, successfully argued before an employment tribunal that this amounted to indirect age discrimination because someone in his age group (people aged 60 to 65) would not be able to finish the course and obtain a degree before reaching the employer's normal retirement age.  The ET went on to find that the indirect discrimination was not objectively justified on the facts.

The EAT allowed the Chief Constable's appeal, holding that indirect discrimination had not occurred because there was no 'particular disadvantage' which affected persons falling within the age bracket of 60–65.  Any financial disadvantage resulting from the operation of the criterion because Mr Homer was so close to retirement age was "the inevitable consequence of age" and not age discrimination.

The Court of Appeal rejected Mr Homer’s appeal, adopting essentially the same reasoning as the EAT.  The particular disadvantage suffered by Mr Homer’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.

However, both the EAT and the CA agreed with the ET that, if there hadbeen indirect discrimination, it would not be objectively justified.

Mr Homer appealed to the Supreme Court and his case was heard at the same time as Seldon.

Decision

The Supreme Court disagreed with the EAT’s and the CA’s analysis on the issue of whether Mr Homer had suffered indirect discrimination for the following reasons:

• The formulation of indirect discrimination in the Employment Equality (Age) Regulations 2006 (and the Equality Act 2010) was intended to make it more straightforward to establish; claimants simply have to show that persons of their age group were disadvantaged when compared to other persons.
• It was not right to equate leaving work because of impending retirement and other reasons for doing so (e.g. family reasons).  In the latter situation, a person generally had some choice in the matter, whereas someone coming up to a mandatory retirement age (which was lawful at the time) did not.
• It is not appropriate to differentiate between age and retirement in this context, because they are directly related.  A requirement which works to the comparative disadvantage of a person approaching compulsory retirement age is indirectly discriminatory on grounds of age.

On justification, the Supreme Court decided to remit the issue to the ET because it had not been approached properly by the courts below.  The Supreme Court made a number of general observations, including:

• The range of aims that can justify indirect discrimination is greater than for direct discrimination (see Seldon for justification of direct age discrimination).  In particular, it is not limited to aims of a social policy nature and those aims involving a real business need on the part of the employer alone may be sufficient.
• In addition to pursuing a legitimate aim, the treatment must be proportionate – i.e. both an appropriate means of achieving the aim and reasonably necessary in order to do so.  It is the criterion itself that must be justified as opposed to its discriminatory effects on the individual.
• Part of this assessment includes comparing the likely impact of the criterion on the affected group as against the importance of the aim to the employer.

Turning to Mr Homer’s case, the Supreme Court noted that he had not been sacked or downgraded for not having a law degree, but was merely being denied the additional benefits associated with being at the highest grade.  The key question was whether it was reasonably necessary in order to achieve the legitimate aims of the scheme to deny those benefits to people in his position.

Implications

The Supreme Court’s judgment emphasises that there is a relatively low threshold for establishing indirect age discrimination.  The Supreme Court evidently considered that the sharp distinction drawn by both the EAT and the Court of Appeal between age and proximity to retirement was unwarranted. Age and proximity to retirement are inextricably linked.

In general terms, this suggests that tribunals are likely to be resistant to technical arguments that the definition of indirect discrimination is not met, at least in cases where the claimant can show in broad terms that persons of his or her age group are disadvantaged when compared to others.  The rationale underlying the Supreme Court’s judgment seems to be that the appropriate “battleground” in such cases is whether there is a valid justification for the relevant provision, criterion or practice.

The Supreme Court’s judgment applies a detailed and rigorous structure to the test for establishing justification of indirect discrimination.  This will be relevant not just in age cases but claims of indirect discrimination based on other protected characteristics as well.

However, in remitting Mr Homer’s case to the ET on this issue, the Supreme Court judges were clearly troubled by the possibility that making an exception for Mr Homer (e.g. by modifying the criterion to include qualifications other than law degrees) might introduce discrimination against another group.  Three of the judges expressed differing views on this point.  One judge, for example, seemed to suggest that Mr Homer was an exceptional case and it might be possible to make a personal exemption might be made for him, whereas another judge was concerned that this might unjustifiably discriminate against younger employees on grounds of their age.

These observations make it difficult to predict which way the ET will decide the justification issue when the remitted hearing takes place.  Pending this, employers would be well advised to think carefully about their reasons for imposing rigid requirements and qualifications.  If a criterion (e.g. having a degree) is regarded as desirable, a flexible approach may is advisable – e.g. a high level of experience may be an acceptable substitute.  However, it is important to consider the extent to which any alternative might itself be discriminatory against a particular age group.

The judgment is available here.

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