Homer v Chief Constable of West Yorkshire Police

The prohibition of discrimination on grounds of age is of fairly recent origin. It is one of the prohibited grounds referred to in the Equal Treatment Framework Directive (2000/78/EC), Article 1 of which refers to equal treatment

“of all persons irrespective of racial or ethnic origin, religion or belief, disability, age or sexual orientation.”

The relevant domestic law is to be found in the Employment Equality (Age) Regulations 2006. Regulation 3 provides:

“(1)

For the purposes of these Regulations, a person (A) discriminates against another person (B) if –

(a)

on grounds of B’s age, A treats B less favourably than he treats or would treat other persons, or

(b)

A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but

(i)

which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and

(ii)

which puts B at that disadvantage, and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.

(2)

A comparison of B’s case with that of another person under paragraph (1) must be such that the relevant circumstances are the same, or not materially different, in the other.

(3)

In this regulation –

(a)

‘age group’ means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages … ”

Thus, Regulation 3(1)(a) prohibits direct discrimination and Regulation 3(1)(b) prohibits unjustified, that is disproportionate, indirect discrimination. The approach is similar, but not identical, to the approach in other domestic anti-discrimination legislation.

The present case provides the first occasion on which age discrimination has been considered in a substantive appeal in this Court. It concerns an allegation of indirect discrimination. The appellant, Mr Terence Homer, succeeded in the Employment Tribunal (ET) but that decision was overturned in the Employment Appeal Tribunal (EAT). The essential facts are set out in the judgment of the EAT (Mr Justice Elias (President), Mr H Singh and Dr B V Fitzgerald). I gratefully adopt and slightly adapt that summary.

The appellant commenced employment with the Police National Legal Database (PNLD) on 2 October 1995. He was appointed to the position of legal adviser. Prior to that he had worked for 30 years as a police officer before retiring with the rank of detective inspector.

PNLD is a department of West Yorkshire Police. It provides legal advice to police forces throughout England and Wales. All 43 police forces were subscribers by 2003. Since 2003 managerial control of PNLD has been carried out by an Advisory Board reporting to the Association of Chief Police Officers.

At the time of the appellant’s appointment, the requirements for the post of legal adviser were that (1) the post holder held a law degree or (2) the post holder held the equivalent of a law degree, or (3) the post holder had “exceptional experience/skills in criminal law, combined with a lesser qualification in law”. He did not have a law or equivalent degree but qualified by virtue of the third requirement.

Subsequently, there appeared to have been new job profiles, each of which emphasised that a degree in law was “essential” for the post. Two such amendments to the profile were made in 2004. The ET therefore inferred that there must have been an intention to change the profile for the job.

A recruitment exercise was carried out after the second amendment to the role criteria in April 2004. One of those appointed, a Ms Radcliffe, did not in fact have a degree in law notwithstanding that it had by then been identified as an essential requirement. She was, however, three-quarters of the way through a degree at that time. The appointment was made by Mrs Croft, who was appointed business director for PNLD in December 2003, and Ms Radcliffe’s appointment was approved by personnel. Mrs Croft accepted in evidence that whilst this was a one-off decision which involved a modification of the usual criteria, it was possible that in making future appointments the “essential” requirement for a law degree might be relaxed.

Shortly after Mrs Croft’s appointment, she had a discussion with the appellant concerning the history of his employment within PNLD. She informed him that his employer would pay for him to undertake a law degree if he so wished. He did not want to do that, although he did not tell Mrs Croft at the time. The ET accepted the appellant’s evidence that he did not think it was worthwhile to undertake the onerous burden of doing the degree part time, given that he would not in any event qualify until after the date at which he proposed to retire, namely 65.

Moreover, at the time of the discussion he did not appreciate that obtaining a degree might have any practical significance. As the ET found, the pay increments awarded to the appellant up to that stage had been made without any reference whatsoever to the question of whether or not he had a law degree.

By 2005 Mrs Croft was concerned about the ability of PNLD to obtain and retain suitable candidates for the legal adviser posts. She considered that there were two principal problems: the first was that staff were underpaid in comparison with similarly qualified persons in the market place; the second was that there was no formal career structure.

In 2005 PNLD secured the services of an external organisation, Michael Page Legal, to carry out an independent assessment of the role and to ascertain the market rate. The aim was to provide information to assist in solving the problems relating to recruitment and retention. The report concluded that a career grading structure should be created and it also recommended salary increments up to a level of £35,000 per annum. This involved an increase in the then current pay levels.

Following this report a career structure with three thresholds was established and approved for the PNLD. The appellant made applications to be treated as complying with the first two thresholds, and he was successful and was re-graded accordingly. He then made an application with respect to the third threshold but this failed. The reason was that in order to qualify at the third level there was a range of criteria which had to be satisfied – nine in all – one of which was the need to have a law degree. This the appellant did not have.

Mrs Croft accepted before the ET that the only basis on which the appellant failed to qualify for the third threshold was this lack of a law degree. He met the criteria in all other respects, and indeed Mrs Croft wholeheartedly supported his application but felt constrained by the rules to deny him this re-grading. She confirmed, however, that the appellant had always been considered as an exception to the requirement to have a law degree.

The appellant appealed the rejection to Acting Chief Constable Hodson, but was unsuccessful. Subsequently he made further representations to Acting Chief Constable Hodson who considered his submissions but, with some reluctance, rejected the claimant’s application on the basis that it would:

“not be appropriate or fair to those who have already acquired or may in the future acquire the relevant qualification to make an exception for the claimant.”

The appellant then pursued a grievance which was unsuccessful, and this ultimately led to his claim before the ET for age discrimination. He also sought an uplift of compensation on the ground of non-compliance with the statutory grievance procedure.

The ET made two other findings material to this appeal. First, it concluded that there was a clear understanding between the appellant and Mrs Croft that the appellant would retire at 65. Second, it noted that a law degree was not strictly the only route by which there could be compliance with the requirements for the third threshold. The requirement as stipulated was “a degree in law or similar fully completed”.

The ET’s view was that neither Mrs Croft nor Acting Chief Constable Hodson appear to have appreciated the potential significance of this. It felt that it would, in fact, have allowed him to be re-graded to the third threshold in accordance with the criteria. The EAT observed that even if the ET were correct about this, the failure properly to apply the rules would have no relevance to the particular claim of indirect age discrimination advanced by the appellant.

The ET defined the appellant’s age group as “persons who were aged between 60 and 65” and the comparator age group as

“anyone of 59 years and below, presumably down to the age of 30, which the Tribunal thought would be generally the youngest … by which anyone could achieve the relevant qualification of a degree in law and also have acquired the necessary experience to meet the other criteria for progression to the Third Threshold.”

The ET then turned to the issue of “particular disadvantage” under Regulation 3(1)(b)(i). Its finding, which is the primary issue on this appeal, was expressed in these terms (at paragraph 18):

“… the age group of which [the appellant] was a member was put at a particular disadvantage. The particular disadvantage was that [the appellant] and others in his age group were prevented from reaching the Third Threshold … and were therefore prevented from achieving the appropriate status of that Threshold and equally were prevented from accessing the financial benefits of increased remuneration which would have been awarded to [the appellant] had he been awarded Third Threshold status. By comparison, those of the age group of 30-59 were able to complete a law degree course, either full-time or part-time, before the normal retirement age of the respondent, by comparison to those of the age group of [the appellant] which was 60-65.”

As to whether the provision, criterion or practice was a “proportionate means of achieving a legitimate aim”, the ET was “fully satisfied” that the respondent was pursuing a legitimate aim – “to facilitate the recruitment and retention of staff of the appropriate calibre within the PNLD”. However, the respondent failed to establish proportionality, mainly because of a failure to adopt a reasonable alternative – “to impose a law degree or similar qualification or alternatively to set such a high level of both practical and theoretical legal experience as to amount to an equivalent of a law degree or similar”. Accordingly, the appellant had suffered indirect age discrimination.

The EAT allowed the employer’s appeal on the “particular disadvantage” issue, finding that the approach of the ET had been vitiated by legal error.

The important passages of the EAT judgment on “particular disadvantage” are as follows:

“35 … There was no basis for concluding that there was any particular disadvantage which affected persons falling within the age bracket of 60-65. …all persons without a degree are treated in precisely the same way. Whoever they are, and whatever their age, they have to acquire the degree before being eligible for the higher pay given to someone in the third threshold. The requirement for a degree is not something required only of those over a certain age.

36.

Nor is it in principle any more difficult for an older than a younger person to obtain the qualification. The need for a degree does of course impose a barrier, but it is a barrier which applies to all alike. It is not one which is affected by age. As the Tribunal pointed out, it was not suggested that the fact of requiring a degree was of itself prima facie indirect age discrimination requiring discrimination, on the grounds that the growth in higher education has resulted in significantly more younger than older workers being in possession of a degree. That would have raised a different case.

37.

The complaint is that the [appellant] is so close to the retirement age that he could not in practice benefit from a law degree even if he had succeeded in obtaining it. A younger person who qualifies will benefit potentially for a long period of time from the higher pay given to those who attain the third threshold. That is correct, but it is equally true of any other benefit conferred on the employees by the employer …

39.

In our judgment, the financial disadvantage if it can properly be so described – resulting from the operation of this criterion is the inevitable consequence of age; it is not a consequence of age discrimination. The disadvantage flows from the simple fact that it is necessary to be employed to earn pay; the shorter the remaining working life the less will be earned by way of future earnings. It seems to us that the [appellant’s] case would require more favourable treatment for older workers to mitigate the fact that as they get older so their working lifespan decreases and the future value of benefits conferred by the employer is reduced. That, however, is the human condition and not even Parliament can change it.

40.

Moreover, if the Tribunal’s decision is correct, then it is difficult to see why those aged 55-60 could not equally say that they would, after taking the time to complete a degree, benefit far less than employees twenty years younger, as could those aged 55-60, and so on …

41.

The inevitable fact is that the benefit, taken over a lifetime’s work, in terms of pay improvement for those who obtain a degree will vary directly with the number of years to retirement (assuming that the workers stay employed until then). The gradual and regular nature of a graph plotting age with advantage itself suggests that the requirement has nothing to do with age discrimination and everything to do with the consequences of age.

42.

We therefore uphold the appeal on this basic ground.”

The EAT then considered, on an alternative basis, whether, if discrimination had been established, the ET’s finding of a failure to justify should stand. Although it was critical of some of the ET’s reasoning on this issue, it confirmed the finding.

The appellant now appeals to this Court, permission having been granted by Smith LJ. It is submitted that there was no legal error in the approach of the ET to “particular disadvantage”. By a Respondent’s Notice, the respondent contends, amongst other things, that the ET and the EAT fell into legal error in relation to proportionality. Of course, the respondent does not need to succeed on proportionality if the EAT reached the correct conclusion on “particular disadvantage”.

On behalf of the appellant, Mr O’Dempsey’s first complaint is that the EAT misunderstood the appellant’s case and the finding of the ET on “particular disadvantage”. He points to paragraph 37 of the judgment of the EAT where the complaint is characterised as the appellant being

“so close to the retirement age that he could not in practice benefit from a law degree even if he had succeeded in obtaining it.”

The next sentence in paragraph 37 describes the lost benefit in terms of the shorter period for which higher pay would be received prior to retirement compared with the longer period that would apply in the case of a younger employee. It seems to me that there is force in the submission that paragraph 37 does less than justice to the entirety of the appellant’s complaint and the finding of the ET. In paragraph 18 of the written reasons, the ET, when identifying the “particular disadvantage”, referred to the appellant and others in his group being

“prevented from reaching the Third Threshold … and were therefore prevented from achieving the appropriate status of that Threshold and equally were prevented from accessing the financial benefits of increased remuneration which would have been awarded … had he been awarded Third Threshold status.”

In other words, the inability to enjoy increased remuneration or, possibly, the ability to enjoy it only for a shorter period prior to retirement were seen as only part of the disadvantage. Of equal importance was the lack of opportunity to achieve “the appropriate status”. By this I understand the ET to have identified a relevant disadvantage in the fact that, whereas the appellant had been working on level terms with his younger colleagues with law degrees, for the remaining years of his employment they would enjoy not only higher pay but also higher status. To the extent that, in paragraph 37, the EAT failed to refer to that aspect of the ET’s findings, it may be said to have misunderstood, at least in part, its identification of “particular disadvantage”. By itself, however, that does not necessarily mean that the decision of the EAT on this issue was wrong in law.

In paragraph 28 of the judgment of the EAT, the principal contention advanced on behalf of the respondent was described in these terms:

“… the requirement [of a law degree] involves no discrimination against anyone of any age. If an employee does not have a degree in law, he or she will have to get one by taking an appropriate course in essentially the same way. This is so whatever the employee’s age. It was not intrinsically more difficult for an older worker to obtain the qualification and [Mr Homer] did not suggest that it was.”

This is the submission that was expressly accepted in paragraph 35 of the judgment and also in paragraph 36, where the EAT added:

“The need for a degree does of course impose a barrier, but it is a barrier which applies to all alike. It is not one which is affected by age.”

It is true that, in the succeeding paragraphs, which I have set out in paragraph 9 above, the EAT illustrated its reasoning solely by reference to the inability to obtain increased remuneration and not at all by reference to the loss of status when compared with graduates, but the question for us is whether, as a matter of law, the EAT was wrong to conclude that the ET fell into legal error in relation to its finding of “particular disadvantage”.

The central question can be succinctly stated: did the introduction and application of the law degree provision put the appellant and others in his age group at a particular disadvantage? The primary submission of Mr Jones, on behalf of the respondent, is that it did not because it was not the appellant’s age but the temporal proximity of his intended retirement that stood in his way and prevented him from obtaining a law degree and attaining the third threshold. The formulation of the claim, says Mr Jones, has to include reference to the consequence of retirement, not just age.

I have no difficulty in accepting Mr Jones’ submission in the context of a disadvantage deriving from the lack of opportunity to benefit from increased remuneration prior to intended retirement at 65. It seems to me that the reasoning of the EAT on this point in paragraphs 39-41 of the judgment (set out in paragraph 24 above) was correct. I find more difficult the question whether the submission is as effective in the context of a disadvantage deriving from an erosion of status between the introduction of the provision, criterion or practice and intended retirement at the age of 65 – the point not considered by the EAT. In one sense there is unreality in differentiation between age and retirement. In most cases they are not unrelated. However, it is important to analyse any claimed disadvantage with care. In my judgment, the claimed disadvantage in relation to status is not sustainable because, on close analysis, it is no different from the perceived disadvantage in relation to remuneration. Whatever his age had been on the introduction of the provision, criteria or practice, the appellant would have failed to achieve the status of the third threshold unless and until he obtained the requisite degree. The fact that, as a man in his sixties, he would not have time to enjoy the status between graduation and retirement is no different from the fact that he would have no opportunity to enjoy the increased remuneration. The implications are the same as those contemplated by the EAT in paragraphs 39-41 in relation to remuneration. Put another way, the appellant’s case is not one of a particular disadvantage but one of a claim for more favourable treatment on account of age.

For these reasons, I consider that the ET was wrong in law to find particular disadvantage in relation to both status and remuneration. In reaching this conclusion, I have derived no assistance from the authorities to which we were referred, being concerned, as they mostly were, with different statutory provisions in other areas of discrimination. The one previous decision on age discrimination to which we were referred is R (Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin) in which Blake J was concerned with and rejected a public law challenge to the legality of the Employment Equality (Age) Regulations 2006. Mr Jones sought to rely on a passage in the judgment of Blake J to support a submission that age discrimination legislation needs to be considered on a more restrictive basis than other forms of discrimination. Blake J said (at paragraph 111):

“I accept the submission … that the use of a specific age as the basis for social policy decisions reflected in the Regulations is somewhat different from use of other criteria such as race, sex, religion or sexual orientation which have either been, or have become now regarded as particularly suspect grounds … This is not to assign age to some diminished worth in a supposed hierarchy of rights. Unlike the immutable characteristics of racial and gender identity all of us grow older each year and all of us face decisions about retirement. The different nature of discrimination on the grounds of age compared with other grounds is reflected directly in the Directive by the fact that Article 6 permits justification of direct discrimination on the grounds of age.”

All that is undoubtedly true. However, it does not assist in the analysis of the facts or the interpretation of the 2006 Regulations. Whatever its relevance to the public law issues in the Age UK case, I do not find it helpful in this private litigation between employee and employer. Moreover, apart from the specific ways in which the 2006 Regulations differ from other anti-discrimination legislative models, their archaeology and that of the governing Equal Treatment Framework Directive suggest an identity of approach to race, religion, disability, age and sexual orientation which are listed together without differentiation in Article 1 of the Directive.

Since I am satisfied that, notwithstanding its incomplete understanding of the particular disadvantage found by the ET, the EAT correctly found the ET to have erred in law in finding such a disadvantage, it follows that I would dismiss this appeal. The appellant, for whom the EAT expressed sympathy which I share, has not established a particular group or individual disadvantage related to age.

In these circumstances, it is unnecessary to give detailed consideration to the respondent’s cross-appeal by which it is contended that both the ET and the EAT made errors of law when concluding that, if indirect discrimination was established, the respondent had failed to show that the treatment was a proportionate means of achieving a legitimate aim. I agree with the EAT that, whilst there were mistakes in the ET’s approach to justification, its conclusion is sustainable. It is common ground that there was a legitimate aim in relation to recruitment and retention. Whether or not the means of achieving it were proportionate required consideration of its effect. The case for the appellant is that the same legitimate aim could have been achieved by including a relaxation of the provision, criterion or practice in relation to his age group. The conclusion of the EAT was that there could have been the same amelioration in relation to recruitment and retention with a modification of the provision, criterion or practice for the appellant’s age group. I do not consider that to be a legally erroneous conclusion. Nevertheless, it does not avail the appellant whose appeal, in my judgment, fails at the first hurdle.

I agree that the appeal should be dismissed for the reasons given by Maurice Kay LJ and Mummery LJ.

This case raises a basic point of indirect age discrimination law that turns on the construction and application of the 2006 Regulations in the circumstances described by Maurice Kay LJ.

To put the matter in context the first question under Regulation 3 is: did the respondent Police Authority apply to Mr Homer a provision, criterion or practice? Yes. To be graded at the top job of legal adviser in the 3^rd threshold of the career grading structure, it was provided that the applicant had to have a law degree (the law degree provision). Mr Homer was 61 at the relevant time in 2005. He was due to retire in 2009 at the age of 65. He neither had a law degree nor did he think that it was worthwhile doing one part-time, as he would not qualify until after the date of his retirement.

The second question is: did the Police Authority apply the law degree provision equally to persons not of the same age group as Mr Homer? Yes. The age group of Mr Homer was between 60-65 and it consisted of persons who would not be able, prior to retirement, to complete a part-time law degree. The law degree provision was applied equally to persons not of the same age group i.e. persons of the comparator age group 30-59 years old, 30 being the youngest age that anyone could achieve both the qualification of a law degree and the relevant experience necessary for the 3^rd threshold.

The critical point emerges from the third question: did the law degree provision put persons of the same age group as Mr Homer at a particular disadvantage when compared with other persons, namely those of the comparator age group? Yes, according to the ET, because it prevented those of Mr Homer’s age group from achieving the status of the 3^rd threshold and the financial rewards attached to that status. No, according to the EAT. Although the law degree provision was a barrier to appointment of those of Mr Homer’s age group as legal adviser, it was not a discriminatory age barrier contrary to regulation 3: its application did not put persons of Mr Homer’s age group at a particular disadvantage. We have to decide who is right on this issue - the ET or the EAT?

The particular disadvantage of which Mr Homer complains is that persons of his age group had insufficient time before retirement at 65 to complete the part-time law degree course and thus achieve re-grading. Like the ET I can see that, in a very general kind of way, persons of that age group could be regarded as disadvantaged by the application of the law degree provision. They could not achieve the re-grading (and the status and financial rewards that go with it) that persons of the comparator age group could achieve. However, it is necessary to look more closely both at the facts about the persons in Mr Homer’s age group and at the precise way in which indirect discrimination law is supposed to work.

As for the facts it has not been suggested, by reference to statistical evidence or otherwise, that the proportion of persons of Mr Homer’s age group who did not have a law degree was larger than the proportion of such persons in the comparator age group who did not have a law degree. Nor has evidence been produced to suggest that it was in fact more difficult for a person of Mr Homer’s age group to obtain a law degree. The absence of such evidence is explained by the particular way in which Mr Homer puts his case. He says that the law degree provision applied by the Police Authority was intrinsically discriminatory for the purposes of Regulation 3. For such a proposition no evidence could be relevant: on its face the proposition is either correct or incorrect. It is argued that the law degree provision was intrinsically discriminatory because its effect was to put members of his age group at a particular disadvantage, as compared with persons in the comparator age group. The particular disadvantage for members of Mr Homer’s age group was quite simply the inability, which was not shared by persons in the comparator age group, to obtain a law degree and qualify for the appointment before retirement.

We also need to look at the object of the 2006 Regulations. Both direct and indirect age discrimination are prohibited. No direct, overt or “formal” age discrimination (“You are too old at 61 to be appointed”) is alleged. For indirect or covert age discrimination Mr Homer had to establish that the result of applying the law degree provision was to put members of his age group at a particular disadvantage, when compared with other persons. But the particular disadvantage suggested in support of the claim for age discrimination did not, in my view, result from the application of the law degree provision to the age of persons in Mr Homer’s age group. The key fact is that persons in Mr Homer’s age group would stop working on retirement at 65. That is why 65 was set as the upper age limit of those included in that group. In those circumstances their inability to satisfy the law degree provision was not a particular disadvantage resulting from the application of that provision to persons of their age. The particular disadvantage complained of results not from age at all, but from the fact of impending withdrawal from the workplace at 65. The inability to acquire, by use of the law degree, the status and financial rewards of appointment was the result of the fact of retirement, not of the age of the persons in the group.

It follows that, in my judgment, the ET erred in law in concluding that Mr Homer’s claim of indirect age discrimination would succeed, unless the respondent could justify the application of the law degree provision to him. The barriers against which the indirect discrimination provisions in Regulation 3(1)(b) are directed are disguised age barriers. The disguised barrier to appointment in this case was not one of age discrimination: it was retirement from the workplace before being able to obtain the qualification for appointment. Properly analysed Mr Homer’s “particular disadvantage” is thus not the result of applying the law degree provision to his age. The particular disadvantage suffered results from the application of the law degree provision to the fact that his life in the workplace would come to an end before he could qualify for the appointment.

That outcome might seem to be unfair to persons of his age group comparing their lot with that of members of the comparator age group. However, the object of the 2006 Regulations (and the Equality Directive 2000/78/EC which they implement) is not to legislate against the general unfairness of age, whether juvenile or geriatric. The targets of anti-discrimination law are more precise. Direct discrimination on the ground of age is prohibited unless justified. That is not alleged in this case. As for unjustified indirect age discrimination, that is only prohibited by Regulation 3(1)(b) if the application of a neutrally worded provision, criterion, or practice puts persons of the same age group as the claimant at a particular disadvantage when compared with other persons. That has not been established in this case. The disadvantage of the law degree provision relied on by Mr Homer and the ET in the form of loss of status and the inability to obtain increased remuneration was not a particular disadvantage resulting from the application of the law degree provision to the age of persons in Mr Homer’s age group. The particular disadvantage results from stopping work before being able to obtain the qualification for appointment. In those circumstances the same result would follow for persons in the comparator age group who also stopped working before qualifying, so that there would be no inequality that was the result of the impact of the law degree provision on age.

For those reasons and for the reasons given by Maurice Kay LJ I would dismiss the appeal. The ET erred in law. The EAT rightly allowed the appeal of the Police Authority on the issue of indirect discrimination. It is not necessary for this court to consider the justification issue. Nor do I see any point in me discussing in detail all the arguments and authorities cited in argument. What this court should do, as far as possible, is lay down in straightforward and clear terms how employment tribunals should construe and apply the 2006 Regulations. This case should make it absolutely clear that what is prohibited is not perceived unfairness as such but proven unjustified agediscrimination.That is defined as either direct and overt by reference to treatment on the ground of age or indirect and covert in the form of a particular disadvantage resulting from the application of an apparently neutral provision impacting disparately on age. This case is not caught by the indirect discrimination provisions in the Regulations because, in short, the particular disadvantageous impact of the apparently neutral law degree provision results from the appellant’s impending retirement, and not from his age.