Supreme Court holds that degree requirement for promotion was indirect age discrimination against employee nearing retirement

Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15

age discrimination | indirect discrimination | requirement for promotion | retirement

The Supreme Court has held that a requirement that employees obtain a law degree before they could be promoted to the highest grade was indirect age discrimination against the claimant, who did not have enough time to complete a degree before he reached the employer's retirement age. However, it sent the case back to the employment tribunal to decide whether or not the employer's actions were justified as a proportionate means of achieving a legitimate aim. 

Implications for employers

  • Employers must be prepared to justify having a strict requirement that, to get a promotion, an employee has to have a degree, without allowing for the possibility of experience being a substitute. 
  • Although the argument was not advanced in this case, an older worker might allege that requiring a degree is in itself indirect age discrimination on the ground that the growth in higher education has resulted in significantly more younger than older workers being in possession of a degree. 
  • Opinion was divided in the Supreme Court about the possibility of an employer having a general rule that a degree is required, but making an exception for one individual. 
  • In practice, the risk of making a personal exception for one worker is that another worker (for example, a younger worker) who was overlooked might feel aggrieved and claim age discrimination. 

At the age of 51, Mr Homer began work with the Police National Legal Database (PNLD) as a legal adviser. When he started, a law degree was not a requirement for the position if the individual concerned had exceptional experience and skills in criminal law, along with a lesser legal qualification. Although Mr Homer did not have a law degree, he did meet the requirement because of to his previous experience in the police force. 

In 2005, as a result of a decision to create a new career structure that provided more opportunities for progression and more competitive salaries, the PNLD introduced a new grading system with three grades above Mr Homer’s starting position. Under the new structure, a law degree or similar was required to achieve promotion to the third grade. Mr Homer was regraded to the second level, but not the third. The PNLD’s business director later gave evidence that she supported Mr Homer’s application for the third grade, but “felt constrained by the rules to deny it to him”. 

By May 2006, Mr Homer was 62, and would reach the PNLD’s normal retirement age of 65 in February 2009. Both he and the PNLD expected that he would retire then. A part-time law degree would have taken at least four years to complete, which would have taken him beyond his normal retirement date. 

Mr Homer’s appeals against the PNLD’s decision were rejected, and he claimed indirect age discrimination, arguing that its actions were not objectively justified. The Employment Equality (Age) Regulations 2006 (SI 2006/1031) were the applicable law in the case. These have been substantially re-enacted, for the purposes of indirect discrimination, by the Equality Act 2010. 

The employment tribunal upheld Mr Homer’s claims. It found that the appropriate age group for comparison was people aged 60 to 65, who would not be able to obtain a law degree before they retired. People in that group were placed at a particular disadvantage (compared with younger people) because they could not reach the third grade. Mr Homer was put at that disadvantage, and the PNLD’s actions were not justified. 

The Employment Appeal Tribunal (EAT) found that there had been no indirect discrimination (although, if there had been, it would not have been justified). The Court of Appeal agreed, and the case went to the Supreme Court. 

The Supreme Court noted that the EAT and Court of Appeal had been persuaded by the respondent’s argument that what had put Mr Homer at a disadvantage was his impending retirement, not his age. If he had not retired, he would have been able to obtain a law degree and reach the third grade. In the Supreme Court, the respondent argued that the correct comparison was with any other person who was nearing the end of his or her employment, for whatever reason, in a similar timeframe. Any such person would face the same difficulty as Mr Homer, and it was not the age group to which he belonged that had put him at a disadvantage. The respondent also argued that, if Mr Homer’s argument was right, this would put people of his age group at an advantage when compared with younger people, because they would be able to gain promotion to the third grade without needing to have a law degree, whereas the younger people would still need one. 

The Court observed that the respondent’s argument involved “taking a particular disadvantage that is suffered by a particular age group for a reason which is related to their age and equating it with a similar disadvantage which is suffered by others but for a completely different reason unrelated to their age”. If this argument was translated into other contexts, it would have “alarming consequences” for discrimination law. For example, a requirement that employees have a beard puts women at a particular disadvantage, because “very few of them” are able to grow a beard. The respondent’s argument would leave sex out of the equation, and instead suggest that it is the inability to grow a beard that causes the disadvantage, with the result that the women must be compared with other people who, for whatever non-sex related reason, are unable to grow a beard for whatever reason (for example, because of immaturity). 

The Court noted that it was, ironically, perhaps easier to make the respondent’s argument under the new formulation of indirect discrimination in the Equality Act 2010, which got rid of the idea of “disparate impact” and introduced the concept of “particular disadvantage”. However, the intention of the new provisions was not to make it more difficult to establish indirect discrimination. The new formulation “was not intended to lead us to ignore the fact that certain protected characteristics are more likely to be associated with particular disadvantages”. 

The Court held that it “cannot be right” to equate leaving work because of impending retirement with other reasons for doing so: the two things are materially different. A person who faces a mandatory retirement age does not have the same choice as people generally have where they leave because of, for example, family reasons or early retirement. At the time of Mr Homer’s retirement, an employer's decision to retire an employee at the age of 65 did not need to be justified. The Court also rejected the argument that Mr Homer’s case amounted to asking for more favourable treatment of his age group. It said that it “obviously has to be possible to cure the discrimination in a non-discriminatory way”. 

The Court found that the respondent’s argument was “too ingenious”. The law of indirect discrimination is an attempt to “level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a particular protected characteristic”. A requirement that works to the comparative disadvantage of people approaching compulsory retirement age is indirect discrimination. There is “unreality in differentiating between age and retirement”. The reason why the people in the age group 60 to 65 did not have time to obtain a law degree was that they would soon reach the retirement age. 

The Court allowed Mr Homer’s appeal on the indirect discrimination point, but sent the case back to the employment tribunal to consider whether or not the respondent’s actions were justified as a proportionate means of achieving a legitimate aim. The employment tribunal and EAT had not properly compared the impact of the respondent’s requirement on the affected group against the importance of its aims. 

The Court noted that the range of aims that can justify indirect discrimination on any ground is wider than the aims that can justify direct age discrimination. It was not disputed between the parties that the respondent’s aim of facilitating the recruitment and retention of staff of an appropriate calibre in the PNLD was legitimate. However, when considering proportionality, the aims of recruitment and retention have to be separated, as do the aims of retaining newly recruited staff and retaining existing staff. The Court said that the employment tribunal needs to ask whether or not requiring existing employees to have a law degree before they could be promoted to the third grade was appropriate to these aims, and noted that the EAT had “expressed some scepticism about this”. 

To some extent, the employment tribunal’s decision on justification would depend on whether or not there were non-discriminatory alternatives available. Lady Hale, who gave the Court's leading judgment, said that there was nothing to stop the respondent from making a personal exception for Mr Homer, quite independently of his age discrimination claim, provided that it did not discrimination against others as a result. Lord Mance, however, said that he had difficulty with this suggestion, because an exception for Mr Homer personally – or even a general exception for employees within the relevant age group – could have discriminated against younger employees. This is something that the employment tribunal will need to consider. 

Additional resources

Case transcript of Homer v Chief Constable of West Yorkshire Police (on the BAILII website)

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