Law Degree Requirement Indirectly Discriminatory Where Employee Unable to Obtain Degree Before Retirement

The Supreme Court has ruled that an employer’s career structure which required employees to have a law degree in order to benefit from increased status and salary was indirectly age discriminatory against an employee who did not have time to complete the degree before his compulsory retirement age.  The requirement was unlawful unless it could be justified.

In Homer v Chief Constable of West Yorkshire, H worked for the Police National Legal Database (PNLD).  PNLD introduced a new career structure with opportunities for progression and more competitive salaries aimed at assisting with the recruitment and retention of staff.  In order to reach the highest grade it was necessary to have a law degree.  H was 62 years old and it would have taken him four years to obtain a law degree.  This meant that he would have already reached PNLD’s compulsory retirement age before he could obtain the degree.  He asked to be treated as an exception but his request was refused and he claimed indirect age discrimination.

H was successful before the employment tribunal but the EAT and CA both considered that there had been no indirect discrimination on grounds of age.  The barrier to promotion was not his age but his impending withdrawal from the workplace.  Others who were about to stop working for other reasons would be at an equal disadvantage.

The Supreme Court disagreed.  H had been put at a disadvantage on grounds of age because impending retirement was directly related to age.  He should not have been compared with those leaving work for another reason as the circumstances of those leaving voluntarily and those being compulsorily retired were materially different.

The Supreme Court remitted the case to the employment tribunal to reconsider the question of justification.  The tribunal ought to have considered recruitment and retention as different legitimate aims and considered whether the requirement for a law degree was a proportionate means of achieving each of those aims.  Different measures might be called for in relation to each aim.  The employment tribunal would have to consider both whether the requirement was appropriate to the aims of recruiting staff and of retaining staff and whether it was reasonably necessary for those purposes.  This would include balancing the discriminatory impact on H against the importance to the employer of its aims and looking at whether there were non-discriminatory alternatives available.

The Supreme Court has given useful guidance on the correct approach tribunals should take when considering justification and the employment tribunal’s decision on this issue is awaited with interest.  It also made it clear that employers seeking to justify indirect discrimination can rely on their own purely personal business aims and do not need to point to a social policy aim – social policy aims are only needed where an employer seeks to justify direct age discrimination.  The Supreme Court’s guidance will apply equally to indirect discrimination on the grounds of other protected characteristics.

Whilst it might be tempting for employers to make an exception for an employee who is adversely affected by a policy because of their age/impending retirement, they should take care as this may expose them to the risk of a discrimination claim from a younger employee.