The Supreme Court in Homer v Chief Constable of West Yorkshire Police has held that a provision, criterion or practice that puts an employee who is leaving his job due to retirement at a disadvantage is discriminatory on grounds of age.  A provision criterion or practice is a policy, procedure, condition or requirement used by the employer. It is wrong to equate an employee who is leaving due to retirement with employees leaving for other reasons.

What does this mean?

Where a provision, criterion or practice places an employee at a disadvantage by reason of their impending retirement it indirectly discriminates against the employee on grounds of age. However, it is still open for an employer to argue that such discrimination was justified. Justification in cases of indirect discrimination is wider in scope than for direct age discrimination – it is not limited to social policy objectives but can also include real need on the part of an employer’s business.

What should employers do?

Employers should avoid discriminating against older staff and those approaching retirement and ensure, with legal advice as necessary, that they should be able to justify any indirectly discriminatory provisions, criteria or practices.