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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