Facts

Police forces were required to make budgetary savings as a result of cuts. Forces used compulsory retirement schemes to reduce officer numbers in order to reduce expenditure. Officers who had been compulsorily retired brought claims of indirect age discrimination. Further details of the facts of this case are available in our summary of the Employment Tribunal decision.

An Employment Tribunal ruled in favour of the officers, but this was overruled on appeal to the Employment Appeal Tribunal.

The officers applied for and were granted permission to appeal the decision of the EAT to the Court of Appeal.

Decision

The Court of Appeal unanimously dismissed the officers’ appeal.

The officers’ appeal was based on 10 substantive grounds, the most fundamental of which were that the EAT had erred in holding that the ET:

1. was wrong in its conclusion that the forces had failed to establish justification;
2. failed to have regard to the fact that the discriminatory element was entirely Parliament's choice;
3. failed to consider whether the means adopted was appropriate and reasonably necessary to the scheme actually adopted by the forces; and
4. made an impermissible finding that there was no way in which the forces could have achieved their aims other than by use of A19.

In reaching its decision, the Court of Appeal acknowledged that in the case the selection process undoubtedly gave rise to prima facie discrimination on grounds of age. However, the Court of Appeal recognised that this naturally accompanied any application of A19. Taking into account the circumstances of the required cuts, it was judged that the adoption of A19 (consisting of selection criteria promulgated by Parliament) was justified, as it was a proportionate way of achieving greater efficiencies, which was a legitimate aim. The Court of Appeal underlined that in the present case the officers who were required to retire pursuant to A19 were selected because the Regulations made all other officers ineligible, and pointed to Baroness Hale comment from Seldon v Clarkson Wright and Jakes that "where it is justified to have a general rule, then the existence of that rule will usually justify the treatment that results from it."

In deciding whether a measure is legitimate and proportionate, the Court of Appeal referred to the decision in Land Registry v Benson that highlighted that the test should be whether the measure was reasonably necessary and not whether it was one of absolute necessity. The analysis in that case, which the Court of Appeal agreed with, was that an employer's decision about how to allocate its resources, and specifically its financial resources, can still constitute a legitimate aim, even when shown that a different allocation with a lesser impact on the class of employee in question could have been made.

The CA, turning to the case at hand, disagreed with the analysis of the ET that the forces dismissing more officers than they needed to constituted the officers suffering the disadvantage of dismissal and indirect age discrimination. It was decided by the Court of Appeal that in reaching this assessment, the ET had elided disadvantage with discrimination, and it was underscored that the forces were under no legal obligation to minimise dismissals and to take any reasonable steps to avoid them.

Interestingly, to further illustrate the reasoning behind its decision to dismiss the appeal, the Court of Appeal drew a comparison between the current case involving retirements and a case involving redundancies. The Court of Appeal noted that although the officers were not employees and therefore could not bring claims for unfair dismissal (“UD”), it was instructive to consider how the decision of the forces would have been analysed if the officers had been able to do so.

While a UD claim does not allow an ET to investigate the commercial or economic reasons which prompt the closure of a business or a reduction in the workforce, any decision to limit the selection pool to employees with 30 years' service or more would be vulnerable to an ET finding that it constituted a UD. However, the Court of Appeal pointed out that if a statutory provision such as A19 made it unlawful to include anyone with less than 30 years' service in the pool, the selection method would be inevitable and a claim for UD would fail.

The Court of Appeal decided that the same logic and process could be applied to the case in hand. Reducing officer headcount to the fullest extent available was taken in the interests of achieving certainty of costs reduction and it was not for an ET to devise an alternative scheme involving the loss of fewer posts. The second element of the decision, to confine dismissals to officers with more than 30 years' service, could not be impugned either, because no other method of selection was lawful. This led the Court of Appeal to reach the conclusion that from these two propositions, the forces’ actions were justified and that the officers’ had no valid claim for age discrimination.

The judgment is available here.

Harrod & Ors v Chief Constable of West Midlands Police & Ors, Court of Appeal, 24 March 201