Indirect age discrimination does not occur where an employee’s promotion depends on their having a degree and they do not have time to obtain one before retirement.
In Homer v Chief Constable of West Yorkshire Police [2010] EWCA Civ 419, the Court of Appeal upheld the Employment Appeal Tribunal’s ruling that no indirect discrimination had occurred.
Terence Homer, the appellant, worked as a police officer for 30 years before transferring to the Police National Legal Database in 2005. He worked as a legal adviser, for which the requirements were that the postholder held a law degree, held the equivalent of a law degree, or had “exceptional experience/skills in criminal law, combined with a lesser qualification in law”. Homer did not have a law degree but qualified by virtue of the third requirement.
Following the introduction of a new career grading structure, Homer found that he could not achieve a higher pay grade without a law degree and that, at the age of 61 years, he did not have time to obtain one before he reached retirement age.
While his manager supported Homer’s application for the higher grade, the Chief Constable felt that it would be unfair to those who had acquired or would acquire the qualification to make an exception for him. Homer raised a grievance.
Delivering judgment, Lord Justice Mummery said: “The barriers against which the indirect discrimination provisions in Regulation 3(1)(b) [of the Employment Equality (Age) Regulations 2006] 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.”
