Age Discrimination – Do We Have a Level Playing Field?

The Supreme Court has recently given Judgment in the case of Homer v Chief Constable of West Yorkshire Police, which is a case concerned with indirect discrimination on the grounds of age and we think the consequences of this decision are interesting.

Mr Homer worked as a legal advisor for the police and in 2005 his department introduced a new grading structure.  In order for him to reach the third threshold he was required to have a law degree.  When he was appointed, a law degree was not essential.  Mr Homer was aged 62 and had a normal retirement age of 65. A law degree would take four years to complete by part-time study. Mr Homer claimed he had been indirectly discriminated against on grounds of age because the requirement to obtain a law degree disproportionately affected people aged 60-65 who would not be able to obtain a law degree before they had to retire.

Mr Homer failed in the Tribunal, Appeal Tribunal and Court of Appeal but the Supreme Court has agreed with him. It has now found that the reason for Mr Homer’s disadvantage was that people in his age group did not have time to acquire a law degree before they retired and this was indirectly discriminatory. Unless the employer can justify this less favourable treatment, it must modify its practices so as to remove the disadvantage.

Is this decision an example of the law of unintended consequences? Won’t an employee who is aged 25 be able to argue that the Supreme Court’s decision will lead to more favourable treatment for older employees? Will a 25 year old need a degree where that condition doesn’t apply to a person aged 60? How will the Tribunal find the right balance?

Perhaps achieving true equality in indirect age discrimination cases will always be taxing. It seems that any attempt to prevent a provision, criterion or practice from being indirectly age discriminatory always has the potential to lead to a disadvantage for another generation. 

Can we really therefore achieve a level playing field in indirect age discrimination?

Dan Kindell - Solicitor

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