13 February 2013 #Employment
The Employment Equality Age Regulations 2006 (“the Age Regulations”) provide that a person will be directly discriminated against if they are treated less favourably than a comparator on the grounds of the person’s age and the treatment cannot be objectively justified. The Age Regulations also provide that a person will be indirectly discriminated against if a provision, criterion or practice (“PCP”) places a person at a disadvantage in comparison to persons who are not of the same age group and the PCP cannot be objectively justified. Similar provisions are contained in the Equality Act 2010. In two recent decisions, both in the public sector, the question of objective justification was considered.
In this case Miss Lockwood, a 26 year-old employee with 8 year’s service, opted for voluntary redundancy. Under the redundancy scheme rules she received £17,690.58 less than if she had been over the age of 35 and with the same length of service. She brought a claim for direct age discrimination.
The employment appeal tribunal (“EAT”) found that the voluntary redundancy scheme rules were objectively justified. The EAT agreed that it was in the public interest to provide a financial cushion that reflected the extra problems older workers experienced after losing their jobs.
Mr Homer was employed as a legal adviser from 1995 by the West Yorkshire Police (“the Police”). Whilst Mr Homer did not have a law degree he was very experienced in criminal law. In 2005, in order to assist recruitment and retention of employees, the Police changed their salary structure and introduced certain thresholds. Under this new structure, a person needed a degree in law to reach the third structure. Because of Mr Homer’s age he could not obtain a law degree before reaching the then compulsory retirement age of 65. Mr Homer pursued claims for indirect discrimination. The Supreme Court found that because persons of Mr Homer’s age did not have time to acquire a law degree before retirement, they were put at a disadvantage compared to other age groups and therefore the PCP was potentially discriminatory. It remitted the case to a fresh employment tribunal (“ET”) to decide whether the Police’s policy was objectively justified.
The ET found that the PCP was not objectively justified on the following grounds:
(i) The aim of the PCP was to recruit and retain staff of an appropriate calibre. However, there was no evidence that clients of the service had requested improvements to the quality of advice offered or asked only to be given advice by those with a law degree.
(ii) The Police gave evidence that offering different terms to new starters and existing staff was “illogical and fraught with problems”. However, the tribunal found that these problems were overstated and the evidence was based on generalisations.
These two cases resulted in different decisions. In the Lockwood case the judgment did not go into great depth in its analysis so it does not give a great deal of insight into the arguments behind the decision. However, it does appear that Miss Lockwood’s claim was easily dismissed because the reason for the DWP’s policy was public interest in nature. In comparison, Mr Homer’s claim succeeded. The ET, in this case, did not simply accept at face value an employer’s assessment of the risks and problems it would face if it followed the less-discriminatory course of action.