Take care when specifiying qualifications – they may be ageist
Chief Constable of West Yorkshire v Homer
Regulation 3(1)(b) of the Employment Equality (Age) Regulations 2006 provides that X indirectly discriminates where X applies to Y a provision, criterion or practice which it applies or would apply equally to persons not of the same age group as Y but which:
- puts or would put persons of the same age group as Y at a particular disadvantage when compared with other persons
- puts Y at that disadvantage
- X cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.
When T Homer joined a department of West Yorkshire Police as a legal adviser in 1995, legal advisers were required to have either a law degree or equivalent, or “exceptional experience/skills in criminal law combined with a lesser qualification in law”.
Homer did not meet the first criterion, but, as a former police inspector, he satisfied the latter.
Subsequently, having a law degree was stated to be “essential” in job profiles for the role of legal adviser.
In 2003, his employer offered to fund Homer in obtaining a law degree. Given his age, if Homer had decided to study for a law degree part-time (ie alongside his job), he would not have qualified until after he was 65 (the normal retirement age). Homer declined his employer’s offer.
In 2005 the employer reviewed its career structures, in the context of recruitment and retention concerns. Thereafter, it increased its existing pay levels and introduced salary increments linked to career structure, which included a number of minimum thresholds. One of these was holding a law degree (which Homer did not).
Homer brought an indirect age discrimination claim in the tribunal. He argued that he had been disadvantaged because he (and others in his age group of 60-65) would not be able to complete a law degree before retirement, and so would not benefit from any enhancement in pay. Homer was successful at tribunal.
However, the case went to the EAT. The EAT held that, had there been prima facie discrimination the tribunal would have been entitled to find that it was not justified. However, it held that a requirement that an employee had to have a law degree to be entitled to be graded at a higher pay scale did not put a 61-year-old employee at a particular disadvantage on the grounds of his age.
The financial disadvantage that resulted from being unable to complete a degree before retirement was the inevitable consequence of age, not a consequence of age discrimination (by the employer). e_SClB
- Homer did not argue that requiring a degree was of itself indirect age discrimination requiring justification (because older workers were less likely to have a degree). Therefore, this EAT decision has limited application to general issues arising from a requirement to hold a degree for a particular role.
- Justification does not necessarily always require concrete evidence it can be established by reasoned and rational judgment in appropriate cases.
What you should do
- Give careful consideration to any role profile requirements and assess whether they are relevant and justifiable in the context of the role.
- Individuals preparing role profiles, involved in recruitment and setting pay scales, and any attached conditions, ought to receive appropriate equal opportunities training.
- Employers should consider justification of any potentially discriminatory provision, criterion or practice, at the relevant time that it is implemented. The rationale for the decision and supporting evidence should be documented.