Chief Constable of West Yorkshire Police and another v Homer

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLADY HALE,LORD BROWN,LORD KERR,LORD HOPE,LORD MANCE
Judgment Date25 Apr 2012
Neutral Citation[2012] UKSC 15

[2012] UKSC 15

THE SUPREME COURT

Easter Term

On appeal from: [2010] EWCA Civ 419

before

Lord Hope, Deputy President

Lady Hale

Lord Brown

Lord Mance

Lord Kerr

Homer
(Appellant)
and
Chief Constable of West Yorkshire Police
(Respondent)

Appellant

Robin Allen QC

Declan O'Dempsey

(Instructed by McCormicks Solicitors)

Respondent

Clive Lewis QC

David N Jones

(Instructed by The Force Solicitor, West Yorkshire Police)

Heard on 17, 18 and 19 January 2012

LADY HALE (WITH WHOM LORD BROWN AND LORD KERR AGREE)

1

The case of Seldon v Clarkson Wright and Jakes [2012] UKSC 16, which was heard alongside this case, concerned direct discrimination on the ground of age. In that case there was no issue that the application of a mandatory retirement age constituted direct age discrimination. The issue was how it might be justified. This case concerns indirect discrimination on the ground of age. Mr Homer appeals against the holding of the Court of Appeal that there was no such discrimination in his case. The Chief Constable appeals against the holding that, if there was such discrimination, it could not be justified.

The proceedings
2

Mr Homer retired from the police force in October 1995 at the age of 51 with the rank of Detective Inspector. He immediately began work with the Police National Legal Database (PNLD) as a legal adviser. The PNLD provides legal advice and other resources to police forces and other organisations in the criminal justice system. When he was appointed, a law degree or equivalent was not essential if the post holder had exceptional experience/skills in criminal law, combined with a lesser qualification in law. This he was deemed to have by virtue of the experience gained and examinations passed in the police force. After his appointment, the criteria were changed so that a law degree became an essential qualification for first appointment, but this did not immediately affect him. The requirement was never applied to him, nor was he told that the possession of a law degree was an issue of concern to his employers, until the matters giving rise to these proceedings.

3

The PNLD experienced problems in attracting enough suitably qualified candidates and concluded that this was because the staff were comparatively underpaid and there was no formal career structure. They were advised to create a new career structure with opportunities for progression and more competitive salaries. At the same time they were advised that it was important to retain current employees and that they continued to be instrumental in the development and expansion of the database. In 2005, therefore, the PNLD introduced a new grading structure with three "thresholds" above the starting grade. In order to reach the third threshold it was necessary to have a law degree or "similar fully completed". In 2006, Mr Homer was regraded to the first and second thresholds, but not to the third, as he did not have a law degree, although he met the criteria in all other respects. The evidence of the business director of the PNLD was that she supported Mr Homer's application for the third threshold but felt constrained by the rules to deny it to him. She supported his internal appeal against the decision but it was rejected in May 2006.

4

By then, he was aged 62. The normal retirement age in the PNLD was 65, although employment might be extended for a year at a time subject to satisfactory medical reports and fulfilling other criteria not expected of people below the age of 65. Mr Homer would reach the age of 65 in February 2009. It was the expectation of both sides that he would retire then. If he were to undertake a law degree by part time study it would take him at least four years. The earliest he could have graduated would have been the summer of 2010, after his normal retirement date. In any event, it was unlikely that he would have obtained a place on a course starting in September 2006 if he only applied in May 2006.

5

Mr Homer appealed against the rejection of his internal appeal in August 2006. The Employment Equality (Age) Regulations 2006 (SI 2006/1031) came into force on 1 October 2006. His further appeal was rejected in November 2006. In December he issued a formal grievance, asking to be treated as a transitional exception, but the respondent did not hold the required meetings, and the grievance was eventually rejected in August 2007. In April 2007 he issued these proceedings in the Employment Tribunal (ET) complaining of unlawful age discrimination.

6

In January 2008, the ET held that Mr Homer was indirectly discriminated against on grounds of age and that this was not objectively justified. However, the Employment Appeal Tribunal (EAT) held that he had not been indirectly discriminated against on grounds of age, although if he had been, it would not have been justified: [2009] ICR 223. The Court of Appeal dismissed both his appeal and the respondent's cross-appeal: [2010] EWCA Civ 419, [2010] ICR 987. The same issues arise on the appeal to this Court.

The law
7

The Employment Equality (Age) Regulations 2006 were the means by which the United Kingdom transposed into UK law the requirements of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. According to article 1, the purpose of the Directive is to

"lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment."

8

Article 2 explains what this means. The portions dealing with indirect discrimination are as follows:

"1. For the purposes of this Directive, the 'principle of equal treatment' shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in article 1.

2. For the purposes of paragraph 1:…

(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having…a particular age…at a particular disadvantage compared with other persons unless:

(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary,…"

9

This is transposed by regulation 3 of the Age Regulations as follows:

"(1) For the purposes of these Regulations, a person ('A') discriminates against another person ('B') if—…

(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…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 in the one case 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; and…"

Unlike the case of direct discrimination, with which Seldon is concerned, it is not suggested that regulation 3 does not properly transpose the Directive into UK law. The question is simply how it applies in this case.

10

Regulation 7 defines the relevant unlawful acts of discrimination:

(2) It is unlawful for an employer, in relation to a person whom he employs at an establishment in Great Britain, to discriminate against that person—

(a) in the terms of employment which he affords him;

(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;

(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or

(d) by dismissing him, or subjecting him to any other detriment."

It is common ground that the failure to allow Mr Homer across the third threshold falls within the regulation.

The discrimination issue
11

The ET found that the appropriate age group was people aged 60 to 65, who would not be able to obtain a law degree before they retired [15]. That group was put at a particular disadvantage compared with people younger than that, because they were prevented from reaching the third threshold and the status and benefits associated with it [18]. The claimant was put at a disadvantage because he could not achieve the qualification (and therefore the status) before he retired. The ET noted that it was not argued that he was put at a disadvantage because fewer people in his age group had law degrees [18].

12

The EAT and Court of Appeal were however persuaded that what put Mr Homer at a disadvantage was not his age but his impending retirement. Had it not been for that, he would have been able to obtain a degree and reach the third threshold. As Mr Lewis argues on behalf of the respondent, the key words in regulation 3(1)(b) are "puts at". What is it that puts him at—or causes—the disadvantage complained of? It is the fact that he is due to leave work within a few years. Regulation 3(2) requires that the relevant circumstances in the complainant's case must be the same, or not materially different, from the circumstances in the case of the persons with whom he is compared. So, argues Mr Lewis, you have to build the relevant circumstance into the comparator group also, in this case the proximity of leaving work. So Mr Homer must be compared with anyone else who is nearing the end of his employment for whatever reason. Anyone who was contemplating leaving within a similar period—whether for family reasons or some other reason—would face the same difficulty. That is what puts him at a...

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