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This case, heard in the Supreme Court, concerned the scope of indirect age discrimination.

The facts in Homer v Chief Constable of West Yorkshire Police

Mr Homer (“the Appellant”) commenced employment with the West Yorkshire Police (“the Respondent”) in 1995 as a legal adviser. He did not possess a law degree at this time but was exempted because of his extensive experience relating to criminal law. Over time the Respondent had difficulty in attracting the right candidates and restructured its grading hierarchy into 3 tiers. The first two tiers did not need a law degree but the highest third tier did. At the time of the restructuring in 2006 Mr Homer was only 3 years away from retirement and to gain a law degree he would have had to study for 4 years part-time. He therefore submitted a claim for indirect age discrimination under the Employment Equality (Age) Regulations 2006 (subsequently repealed and replaced by the Equality Act 2010).

The Employment Tribunal in 2008 found that the Appellant had been indirectly discriminated against on the grounds of age and that this discrimination was not objectively justifiable on the facts. The Employment Appeal Tribunal found that there had in fact been no indirect discrimination but that it if there had been indirect discrimination it would not have been possible to objectively justify it. The Court of Appeal found that there had been no indirect discrimination and upheld the Employment Appeal Tribunal’s view on justification. Both parties appealed to the Supreme Court.

The law relating to indirect age discrimination

Under the s.19 of the Equality Act 2010 indirect discrimination occurs if A (the employer) applies to B (the employee or worker) a provision, criterion or practice which puts B at a particular disadvantage when compared with persons who do not share B’s protected characteristic (in this case age), does put B at that disadvantage, and cannot be demonstrated to be a proportionate means of achieving a legitimate aim.

A provision is a requirement or condition (such as the condition that Mr Homer gain a law degree before he could reach the third tier). A criterion is a test, principle, rule or standard which is applied and a practice is less formal and conventional than the previous two tests.

An example of indirect age discrimination would be the refusal to employ a person with young children (as more married than unmarried persons would be affected) or that part-timers should be dismissed first in a redundancy.

Indirect age discrimination can be justified if the treatment was a proportionate means of achieving a legitimate aim.

The Supreme Court’s decision in Homer v Chief Constable of West Yorkshire Police

The Supreme Court upheld the Appellant’s appeal and stated that the requirement that Mr Homer obtain a law degree was indirectly discriminatory to people of a certain age. Whereas the lower courts had stated that the requirement was not discriminatory on the grounds of age because Mr Homer intended to retire (and his retirement was therefore the issue) the Supreme Court rejected this line of argument, stating that it was in fact his age and that age was inextricably bound up with matters relating to retirement. The Supreme Court remitted the case to the Employment Tribunal for a decision on whether the indirect discrimination can be objectively justified.

Our specialist employment lawyers’ thoughts on Homer v Chief Constable of West Yorkshire Police

Any Supreme Court case is an interesting one and this is no exception. However, there is no “stand out” ratio from this case apart from the fact that discrimination on the ground of retirement generally will be deemed to be discrimination on the grounds of age.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

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