The Supreme Court recently gave judgment on the cases of Seldon and Homer on the same day. In all the reports about the Seldon case, the case of Homer got slightly lost. Admittedly the implications are not quite as wide-ranging as Seldon’s, but it is still an important age discrimination case that employers should be aware of.
Mr Homer worked for the Police National Legal Database (PNLD) as a legal adviser. He was not degree qualified, but had significant experience from having previously been a Detective Inspector within the police.
In 2006 the PNLD created a career structure under which there were three tiers for the legal adviser role. The third (top) tier was only available to employees with a law degree. At that time, Mr Homer was 62 and the normal retirement age within the PNLD was 65. It would have taken him at least 4 years to complete a degree on a part-time basis.
Mr Homer therefore claimed that in denying him the top tier, the PNLD had indirectly discriminated against him due to his age, on the basis that those over 60 were less likely to be able to achieve the top tier.
Indirect discrimination is where a rule (“provision, criterion or practice”) is applied to everyone, but has a disproportionate impact on people with a particular characteristic.
The Supreme Court were required to consider whether this was capable of amounting to age discrimination, and if so, whether it could be justified where it is a proportionate means of achieving a legitimate aim.
The PNLD argued that they had introduced the requirement as part of a career structure in order to recruit and retain the staff of the right calibre for the role. The Court of Appeal had held that it was not Mr Homer’s age that had prevented him from getting to the top tier – it was his retirement, and that there was a difference. The Supreme Court disagreed, finding that the two are inextricably linked. Therefore Mr Homer was indirectly discriminated against – but then the focus turned to whether that discrimination could be justified.
The Supreme Court concluded that there were a wider range of aims that could justify indirect age discrimination as compared with direct age discrimination (as shown by the decision in the Homer case, where to justify direct discrimination an employer would need to show a public policy objective).
They sent the case back to the Employment Tribunal for consideration of whether the justification test was met in the circumstances. In particular, the judgment comments that to make an exception for someone with Mr Homer’s skills and experience may result in discrimination against a younger candidate, so the Tribunal will need to take that into account when considering the issue of justification.
We will of course report back on the decision of the Employment Tribunal in due course. In the meantime, it is best for employers to give careful consideration for any specific role requirements which are introduced, as these can create other discrimination issues such as sex as well as age. For example, in the situation with Mr Homer it may have been possible to have a high level of experience as equivalent to a law degree.
For a copy of the Supreme Court’s judgment, please click here.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team on 01243 836840 or [email protected].