Facts

Following the General Election in May 2010, the coalition government introduced the requirement that police forces had to make cuts of 20% to their budget over four years. Since staffing costs made up 80% of police expenditure, it was decided that compulsory retirement of police officers was the only way in which there could be certainty over the required cuts.

A police authority can require an officer to retire if they are ranked chief superintendent or below on the ground that retention of that officer is not in the force’s interests of efficiency (Regulation A19 of the Police Pensions Regulations 1987 (SI 1987/257)). That officer must have sufficient service in order to qualify for a pension that is at least two thirds of their average pensionable pay.

Five police forces applied Regulation A19 to large numbers of officers who had attained the period of sufficient service. Those officers argued that the police forces had indirectly discriminated against them on the ground of age.

An employment tribunal upheld the officers’ claims. It held that the application of Regulation A19 amounted to indirect discrimination and could not be objectively justified.

The police forces appealed to the EAT.

Decision

The EAT dismissed the claim.

The EAT said that the employment tribunal had failed to acknowledge the fact that discrimination was inherent in Regulation A19: it had been the choice of Parliament to introduce the legislation and its application by the police forces had not added to the discriminatory impact. This followed the decision of the Supreme Court in Seldon v Clarkson Wright and Jakes that where a general rule itself is shown to be justified, one should not have to analyse the justification of applying that rule in individual circumstances. Since it was Parliament who had decided upon the legislation, the tribunal had applied a standard of scrutiny which was too high.

The employment tribunal had suggested other ways which it thought that budget cuts could have been made instead of adopting Regulation A19, these included: career breaks; part time working; and asking officers what their intentions were. The EAT held that it was not for the tribunal to substitute a scheme other than that adopted by the police forces. The role of the tribunal was to determine whether the police forces’ application of A19 was a proportionate means of achieving a legitimate aim. The other methods suggested by the tribunal would not have provided the certainty of budget cuts which were required. Application of Regulation A19 was both appropriate and reasonably necessary and therefore resulted in being a proportionate means of achieving a legitimate aim.

The EAT made a post script comment about the way in which this claim was brought. The claim was one of indirect discrimination; however, the A19 rule would only be applied to those with over 30 years’ experience. Given that there is a minimum age of 18 for joining the police force, only those aged over 48 may be considered. The EAT thought that this should therefore be better characterised as one of direct discrimination, though advanced these views only tentatively.

The judgment is available here.

Chief Constable of West Midlands Police and others v Harrod and others UKEAT/0189/14