Age Discrimination – Qualifications and Pay Structure

Under the Employment Equality (Age) Regulations 2006, it is indirect discrimination for an employer to apply a provision, criterion or practice that is, on the face of it, age neutral but which puts people in a particular age group at a disadvantage, unless it can be shown to be a proportionate means of achieving a legitimate aim.

In Homer v Chief Constable of West Yorkshire Police, the central question was whether or not the introduction of a new career pay grading scheme, which required legal advisers employed by the Police National Legal Database (PNLD) to have a degree in order to qualify for the highest pay grade, discriminated against persons aged between 60 and 65 compared with younger workers. The new scheme was introduced to combat difficulties in recruiting and retaining staff.

Terence Homer was due to retire in 2009 at the age of 65. He was 61 when the new pay scheme was introduced in 2005. He had joined the PNLD as a legal adviser after retiring from the police force, after 30 years service, with the rank of Detective Inspector. Although he did not have a law degree, his experience in criminal law qualified him for the post. By 2005, however, having a degree in law was a requirement of the job. In 2003, Mr Homer was told that his employer was willing to pay for him to undertake a law degree if he wished, but he didn’t think it was worthwhile as there was insufficient time for him to complete a part-time degree before his retirement.

Mr Homer brought a claim of indirect age discrimination on the grounds that the requirement that legal advisers had to have a degree in order to meet the criteria necessary to qualify for the highest pay threshold put persons in the same age group as himself at a particular disadvantage. This was because they could not, in practice, benefit from gaining the qualification and this lack of opportunity had the effect of eroding their status.

The Employment Tribunal (ET) upheld his claim. In its view, the introduction of the degree requirement did put Mr Homer and others in his age group at a particular disadvantage compared with younger workers in the same situation, as it prevented them from reaching the highest pay threshold and also deprived them of the associated enhanced status and financial benefits.

The Chief Constable of West Yorkshire Police appealed against the ET’s decision. The Employment Appeal Tribunal (EAT) found that although the degree requirement was a barrier to appointment to the highest pay grade, it was a barrier that applied equally to employees of all ages. The financial disadvantage that resulted from not having sufficient time to complete a degree before retirement was an inevitable consequence of age, not a consequence of age discrimination.

The Court of Appeal has upheld the EAT’s decision. Lord Justice Mummery said that the object of the Regulations ‘is not to legislate against the general unfairness of age, whether juvenile or geriatric’. The particular disadvantage complained of in this case resulted not from Mr Homer’s age but from the fact of his impending retirement.

It is interesting note not that the claimant in this case did not make the argument that insisting on employees having a degree in order to achieve the highest pay grade was of itself indirect discrimination. The growth in recent years of the numbers going on to higher education means that a greater proportion of young people have been educated to degree level than their older colleagues.

The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

© , July 2010

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Marina Garston - Solicitor

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