Mr Homer worked for West Yorkshire Police (the force) for 30 years as a police officer. In 1995, following his retirement as a serving officer, he commenced employment with the force as a legal adviser for the Police National Legal Database (PNLD) which provides legal advice to all police forces in England and Wales.
In 2005, when Homer was 61, West Yorkshire Police introduced a new three tier grading structure with three ‘thresholds’, the first of which was the lowest paid. All PNLD employees had to apply for each threshold.
To be awarded the third, highest, threshold it was an essential requirement that the employee should hold a law degree. Although he was very experienced, Homer did not have a law degree and his application for the third threshold was rejected.
The force offered to finance Homer through a law degree by following a part-time degree course. Homer turned down this offer as he felt it would be too onerous to study part time and he intended to retire at 65, by which time he would not have completed the degree.
Homer brought employment tribunal proceedings alleging that he had been indirectly discriminated against on grounds of age. His case was that the absolute requirement of a law degree for promotion to the third threshold was a provision or criterion that put people of his age group (between 60 and 65) at a disadvantage because they could not complete a degree before retirement at age 65.
The employment tribunal decided that Homer had been indirectly discriminated against on grounds of age. Employees in the age group 30 to 59 were able to complete a law degree before the normal retirement age of 65. Employees between ages 60 and 65 were disadvantaged because they could not do so and could not, therefore, achieve the higher threshold.
In terms of a justification defence, the tribunal accepted that the degree requirement pursued the legitimate aim of ensuring recruitment and retention of staff of an adequate calibre. However, the requirement was not proportionate and this aim could equally have been achieved by requiring a high level of practical and theoretical legal experience equivalent to a law degree.
However, the Employment Appeal Tribunal (EAT) disagreed and decided there had been no age discrimination. There was no particular disadvantage to those aged 60 to 65 as the requirement for a degree was applied to all staff and a degree was no more difficult for an older person to obtain. The financial disadvantage of not progressing to the third threshold that resulted from the requirement for a degree was a consequence of age and not a consequence of age discrimination.
The Acas guidance in relation to age discrimination makes the point that far more people attend university today than, say, 25 years ago. As such, advertising for candidates of graduate status or making this a requirement of promotion might amount to indirect age discrimination. As the EAT noted, this is not, however, the basis on which Homer put his case. The EAT did not comment on whether Homer’s claim would have succeeded if it had been framed in this way so, for now, employers should remain cautious about stipulating a degree as a requirement. Where they choose to do so, it will be necessary to ensure that there is a sound justification for the requirement.
Louise Hendry, Associate, DLA Piper