In Homer v Chief Constable of West Yorkshire Police, which was heard alongside Seldon v Clarkson Wright and Jakes, the Supreme Court considered the scope of indirect age discrimination.
Mr Homer retired from the police at age 51, and began work for the Police National Legal Database (PNLD) as a legal adviser. When he was appointed in 1995, a law degree was not essential if the post holder had exceptional experience in criminal law and a lesser qualification in law. Mr Homer did not have a law degree, but met the criteria because of his experience and exams passed in the police force.
In 2005, a new career structure was introduced to improve retention, consisting of three thresholds with increasing pay levels. In order to reach the third threshold, an employee had to have a law degree. Mr Homer met the criteria for the first and second thresholds but was not accepted for the third threshold as he had no law degree. By that time, he was aged 62 and undertaking a law degree would have taken him beyond his normal retirement age of 65. He claimed indirect age discrimination in that he had been subject to a provision, criterion or practice which put employees of his age group at a particular disadvantage compared with younger employees who would be able to meet the requirements for the third threshold before their normal retirement age.
The Supreme Court agreed that it was indirectly discriminatory for Mr Homer to have to work beyond his normal retirement age in order to obtain the benefit of a law degree. However, it remitted the case to the employment tribunal to decide whether the PNLD's approach was justified. The tribunal will need to decide whether requiring existing staff to have a law degree before they can achieve the highest grade was appropriate to the aim of retention. This will be another interesting decision for employers seeking to justify policies and practices which are potentially age discriminatory.
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