Age discrimination: EAT considers “A19” forced retirement of police

New police officers 'passing out' last week, but when will they retire? Photo: Nils Jorgensen/REX
New police officers "passing out", but when will they retire? Photo: Nils Jorgensen/REX

The Employment Appeal Tribunal (EAT) has heard the appeal in a test case against five police forces over the legality of a rule requiring police officers to retire after 30 years’ service to cut costs.

Age discrimination and police retirement: judgment published

The judgment in this case was published on 8 July 2015. XpertHR has a full case report on Chief Constable of West Midlands Police and others v Harrod and others, including guidance on the implications for employers.

The appeal in this case, which has wide implications for all police forces in England and Wales, was heard in the EAT on 11 to 13 March 2015.

In Harrod and others v Chief Constable of West Midlands Police and others, a test age discrimination case was brought in the employment tribunal against five police forces over their liberal use of the “A19 rule”.

This rule in police pension regulations allows police forces to require a police officer to retire once he or she reaches 30 years’ service and is entitled to a pension of two-thirds of pensionable pay.

Police forces’ adoption of the A19 rule increased as budgets were substantially cut and the forces had to find new ways, alongside traditional methods such as a recruitment freeze, to cut their expenditure.

The police forces were given legal advice that, while wider use of the A19 rule would be indirectly discriminatory, it was possible that it could be justified.

The employment tribunal upheld the police officers’ age discrimination claim. The tribunal found that the widespread practice of requiring the retirement of officers in this way is not a proportionate means of achieving a legitimate aim.

A19 police retirement rule

Compulsory retirement on grounds of efficiency of the force

“(1) This Regulation shall apply to a regular policeman … who if required to retire would be entitled to receive a pension of an amount not less than two thirds of his average pensionable pay…

“(2) If a police authority determine that the retention in the force of a regular policeman to whom this Regulation applies would not be in the general interests of efficiency, he may be required to retire on such date as the police authority determine.”

Police Pensions Regulations 1987

XpertHR principal employment law editor Stephen Simpson, who attended the EAT hearing, said: “This case, while of specific interest to HR professionals in the police, is a warning to all public-sector employers looking for new ways to cut costs and increase efficiency. They need to have in mind the potentially discriminatory impact of their changes on groups with a protected characteristic.”

“The best way for an employer to think about this is to assess the balance between the potential benefits to it (here, costs savings) against the hardship to the individuals who will be affected. It is also useful for the employer to think about whether or not there is another less discriminatory way for it to achieve the same result.”

Simpson advises: “It will help an employer facing a claim enormously to have identified early any groups who might be disadvantaged and to have set down this assessment in writing at the time that it made its decisions. The employer should set down evidence of the benefits to it and the disadvantages to whoever will be affected.

“This will at least show to the tribunal judge in any later discrimination claim that the employer has considered whether or not its actions can be justified.”

The original employment tribunal claim involved around 200 officers. However, since the employment tribunal ruling, police forces have received over 800 more claims from officers. This means that over 1,000 police officers are now eagerly awaiting the judgment. A total of 15 police forces in England and Wales have made use of the A19 rule. West Midlands Police alone faces almost 500 claims.

Judgment was reserved at the end of the EAT hearing. It is likely to be several months before the final judgment is delivered. The claims were brought against the police forces of Devon and Cornwall, Nottinghamshire, the West Midlands, North Wales and South Wales.

More details of the arguments put forward by the police forces and the claimants in the appeal, and the main cases cited in the EAT hearing, are available on XpertHR.

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