The Supreme Court's judgement in Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601, delivered earlier in the year, has received relatively little attention.  It was co-joined for a hearing with the case of Seldon v Clarkson Wright and Jakes - which concerned age discrimination and retirement (in that case a partner in a law firm). The Seldon case itself has taken much of the limelight, however it has relatively narrow application in some respects, when compared to the Homer decision, which is significant in a respect of its pronouncements on the concept of indirect discrimination as well as justification.

The Supreme Court's decision in Homer has wider implications beyond its application to age discrimination especially when one is reminded that indirect discrimination and objective justification are both concepts which apply across all discrimination strands.

The facts

Mr Homer had retired from the police force and taken up employment with the Police National Legal Database (PNLD) as a legal advisor.  At the time of his appointment in 1995 when he retired from the rank of Detective Inspector, this new appointment did not require a law degree as an essential qualification provided (as was recognised in Mr Homer's case) the post holder had exceptional experience and skills in criminal law.

When PNLD began to experience recruitment difficulties in 2005, it introduced a new grading structure which enabled it to introduce a more formal career structure and new grading.  Within the new grading above the starter grade were three "thresholds" but to get to the third and highest salary grade an employee needed to have a law degree.

Not only did Mr Homer not have the qualification but at age 62, if he completed a law degree by part time study, he calculated it would take him four years to complete by which time he would be close to age 65 which was PNLD's compulsory retirement age.

Despite an internal appeal, the PNLD was not prepared to make an exception in Mr Homer's case and he therefore raised a complaint of indirect age discrimination.

Employment Tribunal

The original Employment Tribunal decided that the law degree as a criterion amounted to indirect discrimination on grounds of age which it was not satisfied could be justified.

By contrast, the Employment Appeal Tribunal and Court of Appeal decided there had been no indirect age discrimination and drew a distinction between age and impending retirement.  What had put Mr Homer at a disadvantage had not been his age but the fact that he would be retiring.  These judgements caused some to puzzle the distinction between age and, in effect, reaching retirement age.

Supreme Court - Indirect discrimination

The Supreme Court disagreed with both the Employment Appeal Tribunal and Court of Appeal.  It emphasised a number of important factors that had to borne in mind when considering the indirect discrimination test which was updated and revised - in the Supreme Court's words  "reformulated" - in the Equality Act 2010.  The requirement is to show that there is a provision, criteria or practice which creates a particular disadvantage to those holding a protected characteristic, when compared to those who do not share that characteristic.  The previous test was more stringent.  As the Supreme Court emphasised, the new test is there to recognise that certain protected characteristics are indeed more likely to relate to or result in certain and particular disadvantages.  It rejected the suggestion that there was a distinction that could be drawn between retirement and age and reminds us that the new test sought to simplify indirect discrimination and that courts should not be over complex in their analysis.

PNLD tried to argue that the disadvantage was the inability to complete the law degree, one which would impact not just on those who were close to retiring within the time frame in which a law degree could be obtained, but in fact would disadvantage any leavers who left before completing the law degree or within say a four year period.  They sought to argue that that "time frame impact" affected all leavers whether employees had to leave for family reasons or retirement.  It did not, it said, create a specific disadvantage related to age.

The Supreme Court rejected this argument, saying that the analysis was flawed for leaving age out of the consideration that those leaving for other reasoning were driven by reasons unrelated to age; the disadvantage in Mr Homer's case was linked to age so that it was not a valid comparison or contrast.

Lady Justice Hale drew an analogy with a completely different scenario adopting the same argument:

"for example, a requirement that employees in a particular job should have a beard which put women at a particular disadvantage because very few of them are able to grow a beard".

She said the employer's argument would have left sex out of account and said that it was the inability to grow a beard which put women at a particular disadvantage and so they needed to be compared with other people who for whatever reason, whether illness or immaturity, were unable to grow a beard.

Retirement was a completely different reason in the circumstances than other reasons which by contrast, might be leaving through choice.  The significance of the different circumstances was illustrated by the fact that someone leaving through choice rather than because they are being forced to retire by their employers retirement age, can at least have greater control over the timing of their departure.

Object justifications and exceptions

The Supreme Court then went on to consider the particular circumstance and the needs of PNLD. It pointed out that one consideration was whether allowing some exceptions to the new rules and grading structure could have been permitted but still meet PNLD's needs and be justified.

One suggestion was that the discriminatory impact could have been addressed by allowing some exceptions not related to age - for example applying the new criterion only to those appointed after implementation of the new grading scheme.  Of course this could create a different problem of both indirect age and indeed indirect sex discrimination.

The courts have long recognised that when looking at whether the application of a criterion or new practice can be justified, one consideration is the extent to which to alleviate the discriminatory impact, exceptions can be allowed - they should at least be considered and weighed as part of the employers considerations.  The leading case in this regard is London Underground Limited v Edwards (No 2) [1998] IRLR 364, in which the Court of Appeal looked at new rostering arrangements which were introduced at London Underground.  All the male train drivers could comply with the new rosters but for some of the female drivers this created a difficulty.

"The reason, of course, was that the new rosters had greater impact on single parents and single parents are predominantly (though not exclusively) female.  But the problem could be solved, not by making an exception for the women, but by making arrangements for single parents of whatever sex.  This problem could have been solved by making arrangements for people appointed before the new criterion was introduced".

The Supreme Court was not satisfied that the Tribunal had analysed sufficiently rigorously, the question of the employer's justification in Homer and the case has been remitted to the Tribunal to specifically consider this aspect again.  Emphasising that the Tribunal is required to weigh the needs of the organisation against the impact which it may have in terms of discrimination, the Supreme Court formed the view that the Tribunal needed to compare, contrast and weigh up the impact of the measures taken on the disadvantaged group against the significance and importance of the employer's aims, requirements and needs.

It did recognise however that there would be difficulties allowing just an exception for Mr Homer himself or indeed an exception for those within four or five years of retiring because such an exception would, in itself, create potential discrimination issues against younger employees (further age discrimination).

Conclusion

This case undoubtedly provides an important reminder of the considerations to be applied across the board in claims under the Equality Act and indeed employers' practices, when assessing what might be indirect discrimination and the lawfulness of any proposed changes, practices or criteria.