Homer v Chief Constable of West Yorkshire Police

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Maurice Kay,Lord Justice Richards,Lord Justice Mummery
Judgment Date27 Apr 2010
Neutral Citation[2010] EWCA Civ 419
Docket NumberCase No: A2/2008/2793

[2010] EWCA Civ 419

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Before: Lord Justice Mummery

Lord Justice Maurice Kay

and

Lord Justice Richards

Case No: A2/2008/2793

REF NO: UKEATO19108RN

Between
Homer
Appellant
and
Chief Constable of West Yorkshire Police
Respondent

Mr Declan O'Dempsey (instructed by Messrs McCormicks) for the Appellant

Mr David Jones (instructed by the Force Solicitor) for the Respondent

Hearing date: 23 February 2010

Lord Justice Maurice Kay

Lord Justice Maurice Kay:

1

The prohibition of discrimination on grounds of age is of fairly recent origin. It is one of the prohibited grounds referred to in the Equal Treatment Framework Directive (2000/78/EC), Article 1 of which refers to equal treatment

“of all persons irrespective of racial or ethnic origin, religion or belief, disability, age or sexual orientation.”

2

The relevant domestic law is to be found in the Employment Equality (Age) Regulations 2006. Regulation 3 provides:

“(1) For the purposes of these Regulations, a person (A) discriminates against another person (B) if –

(a) on grounds of B's age, A treats B less favourably than he treats or would treat other persons, or

(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 treatment or, as the case may be, 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 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 …“

3

Thus, Regulation 3(1)(a) prohibits direct discrimination and Regulation 3(1)(b) prohibits unjustified, that is disproportionate, indirect discrimination. The approach is similar, but not identical, to the approach in other domestic anti-discrimination legislation.

4

The present case provides the first occasion on which age discrimination has been considered in a substantive appeal in this Court. It concerns an allegation of indirect discrimination. The appellant, Mr Terence Homer, succeeded in the Employment Tribunal (ET) but that decision was overturned in the Employment Appeal Tribunal (EAT). The essential facts are set out in the judgment of the EAT (Mr Justice Elias (President), Mr H Singh and Dr B V Fitzgerald). I gratefully adopt and slightly adapt that summary.

5

The appellant commenced employment with the Police National Legal Database (PNLD) on 2 October 1995. He was appointed to the position of legal adviser. Prior to that he had worked for 30 years as a police officer before retiring with the rank of detective inspector.

6

PNLD is a department of West Yorkshire Police. It provides legal advice to police forces throughout England and Wales. All 43 police forces were subscribers by 2003. Since 2003 managerial control of PNLD has been carried out by an Advisory Board reporting to the Association of Chief Police Officers.

7

At the time of the appellant's appointment, the requirements for the post of legal adviser were that (1) the post holder held a law degree or (2) the post holder held the equivalent of a law degree, or (3) the post holder had “exceptional experience/skills in criminal law, combined with a lesser qualification in law”. He did not have a law or equivalent degree but qualified by virtue of the third requirement.

8

Subsequently, there appeared to have been new job profiles, each of which emphasised that a degree in law was “essential” for the post. Two such amendments to the profile were made in 2004. The ET therefore inferred that there must have been an intention to change the profile for the job.

9

A recruitment exercise was carried out after the second amendment to the role criteria in April 2004. One of those appointed, a Ms Radcliffe, did not in fact have a degree in law notwithstanding that it had by then been identified as an essential requirement. She was, however, three-quarters of the way through a degree at that time. The appointment was made by Mrs Croft, who was appointed business director for PNLD in December 2003, and Ms Radcliffe's appointment was approved by personnel. Mrs Croft accepted in evidence that whilst this was a one-off decision which involved a modification of the usual criteria, it was possible that in making future appointments the “essential” requirement for a law degree might be relaxed.

10

Shortly after Mrs Croft's appointment, she had a discussion with the appellant concerning the history of his employment within PNLD. She informed him that his employer would pay for him to undertake a law degree if he so wished. He did not want to do that, although he did not tell Mrs Croft at the time. The ET accepted the appellant's evidence that he did not think it was worthwhile to undertake the onerous burden of doing the degree part time, given that he would not in any event qualify until after the date at which he proposed to retire, namely 65.

11

Moreover, at the time of the discussion he did not appreciate that obtaining a degree might have any practical significance. As the ET found, the pay increments awarded to the appellant up to that stage had been made without any reference whatsoever to the question of whether or not he had a law degree.

12

By 2005 Mrs Croft was concerned about the ability of PNLD to obtain and retain suitable candidates for the legal adviser posts. She considered that there were two principal problems: the first was that staff were underpaid in comparison with similarly qualified persons in the market place; the second was that there was no formal career structure.

13

In 2005 PNLD secured the services of an external organisation, Michael Page Legal, to carry out an independent assessment of the role and to ascertain the market rate. The aim was to provide information to assist in solving the problems relating to recruitment and retention. The report concluded that a career grading structure should be created and it also recommended salary increments up to a level of £35,000 per annum. This involved an increase in the then current pay levels.

14

Following this report a career structure with three thresholds was established and approved for the PNLD. The appellant made applications to be treated as complying with the first two thresholds, and he was successful and was re-graded accordingly. He then made an application with respect to the third threshold but this failed. The reason was that in order to qualify at the third level there was a range of criteria which had to be satisfied – nine in all – one of which was the need to have a law degree. This the appellant did not have.

15

Mrs Croft accepted before the ET that the only basis on which the appellant failed to qualify for the third threshold was this lack of a law degree. He met the criteria in all other respects, and indeed Mrs Croft wholeheartedly supported his application but felt constrained by the rules to deny him this re-grading. She confirmed, however, that the appellant had always been considered as an exception to the requirement to have a law degree.

16

The appellant appealed the rejection to Acting Chief Constable Hodson, but was unsuccessful. Subsequently he made further representations to Acting Chief Constable Hodson who considered his submissions but, with some reluctance, rejected the claimant's application on the basis that it would:

“not be appropriate or fair to those who have already acquired or may in the future acquire the relevant qualification to make an exception for the claimant.”

17

The appellant then pursued a grievance which was unsuccessful, and this ultimately led to his claim before the ET for age discrimination. He also sought an uplift of compensation on the ground of non-compliance with the statutory grievance procedure.

18

The ET made two other findings material to this appeal. First, it concluded that there was a clear understanding between the appellant and Mrs Croft that the appellant would retire at 65. Second, it noted that a law degree was not strictly the only route by which there could be compliance with the requirements for the third threshold. The requirement as stipulated was “a degree in law or similar fully completed”.

19

The ET's view was that neither Mrs Croft nor Acting Chief Constable Hodson appear to have appreciated the potential significance of this. It felt that it would, in fact, have allowed him to be re-graded to the third threshold in accordance with the criteria. The EAT observed that even if the ET were correct about this, the failure properly to apply the rules would have no relevance to the particular claim of indirect age discrimination advanced by the appellant.

The decision of the ET

20

The ET defined the appellant's age group as “persons who were aged between 60 and 65” and the comparator age group as

“anyone of 59 years and below, presumably down to the age of 30, which the Tribunal thought would be generally the youngest … by which anyone could achieve the relevant qualification of a degree in law and also have acquired the necessary experience to meet the other criteria for progression to the Third Threshold.”

21

The ET...

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