The test for justifying direct age discrimination has recently been clarified – and not before time…
The Supreme Court has held (in the case of Seldon -v- Clarkson Wright and Jakes) that the test for justifying direct age discrimination is different and narrower than the general test for justifying indirect discrimination.
The test, as now clarified, is that employers must show:-
• They have an aim;
• That aim is potentially legitimate in that it is capable of being a ‘public interest’ aim. Aims based on ‘public interest’ are distinguishable from purely individual aims which are particular to the business, e.g. cost reduction or improving competitiveness;
• The aim is also legitimate in the particular circumstances of the case. A potentially legitimate aim within the Directive may not be so for the particular business concerned. For example, avoiding the need for performance management is an aim directly connected with the ‘public interest’ aim relating to ‘dignity’ but if, in fact, the business already has sophisticated performance management procedures in place, it may not be legitimate to disapply them for one section of the workforce. This is quite complex and requires particular scrutiny of the aim in the context of the individual business to see if it is legitimate for that employment;
• The means chosen to achieve the aim must be both appropriate and necessary. In Homer -v- Chief Constable of West Yorkshire Police (see below), the Supreme Court emphasises that proportionality must be approached by considering both these aspects separately. This will involve considering whether there are other, less discriminatory, measures which would achieve the aim.
The scope of indirect age discrimination has also been clarified…
In the Supreme Court decision in Homer -v- Chief Constable of West Yorkshire Police regarding the scope of indirect discrimination on the ground of age, a conclusion was arrived at which, on the face of it, appears obvious – namely that retirement and age are inextricably linked…
At the age of 51 Mr Homer began working for the Police National Legal Database. He had no degree in law, but, when he was appointed, a law degree was not a requirement of the job. He had the other relevant experience and skills required to hold down the post.
A new grading structure was then introduced. There were three promotion thresholds, the third and final one requiring a law degree. Because of this requirement Mr Homer could not get to level three unless he embarked on a part time law degree alongside his day job, which would have taken 4 years. When the new requirement came in Mr Homer was already 62, and being required to retire at 65 (this was before the abolition of the default retirement age), he would not have been able to enjoy the level three promotion before he had to leave his employer.
He brought a claim of age discrimination. His claim was for indirect discrimination in that he had been subject to a provision, criterion or practice which put persons of his age group (including him) at a particular disadvantage compared with other persons.
The EAT and Court of Appeal had rejected Mr Homer’s claim. Their view was that what put Mr Homer at a disadvantage was not his age, but his impending retirement. His position was therefore comparable with any other employees nearing the end of their employment, for whatever reason.
The Supreme Court disagreed with this analysis and upheld Mr Homer’s appeal. Persons in his position were disadvantaged because of a reason (retirement) that directly related to their age. It could not be correct to equate leaving because of impending retirement with other reasons for doing so.
Although Mr Homer was indirectly discriminated against on ground of age it was still open for the employer to justify the discriminatory requirement so that issue was remitted to the employment tribunal for consideration.