We would like to place strictly necessary cookies and performance cookies on your computer to improve our website service.
To find out more about how we use cookies and how you can change your cookies settings, please read our  cookies statement.                
Otherwise, we'll assume you are OK to continue.   Please close this message

Justifying indirect age discrimination

27 April 2012

Supreme Court upholds appeal in Homer v Chief Constable of West Yorkshire

On 25 April 2012, the Supreme Court upheld Mr Homer's appeal, finding unanimously that the police force's policy of restricting promotion to a certain grade of employees with a law degree was indirectly discriminatory against Mr Homer who did not have time to complete his degree and benefit from the pay rise prior to his retirement at age 65. The case was heard alongside that of Seldon v Clarkson Wright and Jakes in which the Supreme Court considered whether the direct discrimination of Mr Seldon who was compulsory retired at age 65 could be objectively justified. The court also considered whether the conduct complained of amounted to indirect discrimination before turning to the issue of justification. Its findings in Seldon were relied on in determining what amounted to a legitimate aim, but the court has remitted Homer to the Employment Tribunal on the question of justification.

The case raised issues about the distinction between an age discriminatory policy and the consequences of old age. The Court of Appeal (CoA) had said that Mr Homer's inability to meet a criterion was not his age but "the consequence of age" and was therefore not indirect age discrimination. The Supreme Court disagreed, finding that although the disadvantage was caused by his impending retirement, it was fatuous to say this was not linked to his age. The police force argued that Mr Homer was put at no different disadvantage than an employee who had decided to leave for family reasons and was equally unable to complete law degree and meet the next grading criteria with increased pay. The Supreme Court disagreed that it was appropriate to draw this comparison, as the other employee's reason for leaving is entirely unrelated to age whereas Mr Homer's was. Also, Mr Homer's impending retirement was beyond his choice, but the comparator is assumed to be exercising personal choice to leave.


Mr Homer, a retired police officer, worked for the Police National Legal Database (the PNLD) as a legal adviser. The PNLD experienced problems with recruiting suitably qualified staff and recognised that its lack of career structure and remuneration packages was a contributing factor. It was also concerned about staff retention. In response to this, in 2005 the PNLD introduced a new grading structure with three thresholds above the starting grade. In order to meet the threshold for the top grade, the applicant required a law degree or similar. Mr Homer was regarded in 2006 and met the first two thresholds but not the third due to the absence of a law degree or similar, although he met the criteria in all other respects. Mr Homer was three years off retirement at age 65. Having unsuccessfully appealed against his application to be graded at the top level, he brought an indirect age discrimination claim in 2007. The provisions of the Employment Equality (Age) Regulations 2006 applied to his case.


The decision outlines the relevant tests for justifying indirect discrimination. The scope for justifying indirect discrimination is wider than direct discrimination as there is no need to take account of public policy.

A provision criterion or practice is justified only if the employer can show that it is a proportionate means of achieving a legitimate aim. The need to recruit and retain talented staff is accepted as a legitimate aim, following Seldon, but in this case the test of proportionality was not established. The police force had not provided evidence that the requirement to hold a degree for the higher grade was an appropriate and necessary means of achieving its expressed aims. The court wanted to know whether a less discriminatory measure could have been adopted.

Remittance to the Employment Tribunal

The Supreme Court has therefore remitted to the Employment Tribunal the question of whether the criterion of a law degree was proportion to the police forces legitimate aim. The tribunal will consider whether there was a less discriminatory way of achieving the aim.

Implications for all employers

Splitting hairs is not something which employers can do to avoid age discrimination. The fact is a persons retirement is intrinsically age related and cannot be separated from it.

Employers are reminded that the court (or tribunal) will weigh up the need for the employer to follow  particular course of action with the impact it has on the individual. Employers will need to think of alternative approaches before settling on the one that it takes, and have good reasons for rejecting methods which might have been more beneficial to affected employees. This will make it easier to show that the decision it has taken is proportionate.

The case was considered jointly with Seldon v Clarkson Wright and Jakes, which concerned justification of direct age discrimination.

This article was written by Emma Bartlett.