In an important case, an Employment Tribunal has decided that a requirement that employees hold a law degree in order to move up through structured pay grades was not objectively justified. Therefore, the requirement constituted indirect age discrimination.
The employer failed to show that clients of the service in question had requested improvements to the quality of advice offered. In addition, clients had not asked for advice to only be provided by someone with a law degree. The Tribunal also concluded that the employer had overstated the problems of applying a more lenient rule to existing staff.
Employers should be alert to the fact that Tribunals will carefully scrutinise whether a less-discriminatory course of action could be adopted when applying certain provisions, criteria or practices in the workplace.
After serving as a police officer for 30 years, Mr Homer chose to pursue a career as a legal adviser in the Police National Legal Database (PNLD) for the West Yorkshire Police (the Police). As a requirement of this post, legal advisers needed to have either:
a law degree (or similar); or
exceptional experience/skills in criminal law.
Mr Homer did not hold a law degree but he was appointed to the role in 1995 because of his exceptional experience in criminal law matters.
A decade later, the PNLD was struggling to recruit and retain individuals in legal posts. Therefore, it decided to increase salaries and introduce a formal career structure in order to alleviate the problems.
In order to reach the third tier of the revised career structure (and therefore receive an increase in salary), an individual had to hold a law degree (or similar). It was no longer enough to have exceptional experience.
The Police’s default retirement age at the time was 65. Therefore, because of Mr Homer’s age, he would not be able to obtain a degree before reaching the default retirement age. Mr Homer would not be able to become a level three advisor and would not be able to receive any corresponding pay rise.
Mr Homer argued that this was indirect discrimination because of his age. After some legal challenges, Mr Homer’s case reached the Supreme Court which decided that the Police’s requirement was capable of indirect discrimination.
The Supreme Court sent the case back to a Tribunal to decide whether the Police’s requirement was objectively justified (i.e. was it a proportionate means of achieving a legitimate aim).
The Tribunal decided that the Police could not justify its requirement that level three advisors hold a law degree. Therefore, Mr Homer succeeded with his indirect age discrimination claim.
The Police put forward an argument that the new career structure was to ensure the right calibre of candidates was recruited in order to improve the quality of the service it offered.
Mr Homer contended that, although the Police wanted to recruit highly qualified staff, existing staff (like himself) could have been exempted from the need to obtain a degree. The Police argued that having different requirements/terms for existing staff and new starters was illogical and fraught with problems (including employee relations issues). However, the Tribunal was not convinced that this was the case. It used the example of employees being on different pension schemes following the closure of a final pension scheme to new members (but allowing existing employees to remain in the old scheme).
Although the Tribunal accepted that a legal adviser with a law degree may be of a better calibre than one without, it did not consider that it was necessary to require existing legal advisers to hold a law degree (and so be enabled to move up to the third tier of the career/pay structure). Importantly, the Police could not show that its current clients had requested better qualified legal advisers or that its prospective clients were insisting on advice only being given by a law graduate. In addition, there was no evidence that legal advisers would be poached by competitors if the Police made an exception to the requirement for existing staff.
The Tribunal pointed out that it was not deciding that a special exception should have been made for Mr Homer (since by doing this the Police may well have discriminated against younger workers). Instead, the Tribunal made clear that different requirements could have applied to all existing legal advisers as against new recruits. The Tribunal decided that the Police overstated the problems that might have been caused by being more lenient with existing staff.
This case is a reminder that a Tribunal will scrutinise an employer’s rationale for introducing a provision, criterion or practice that indirectly discriminates against an individual. Such rationale should be based on reasonable, logical business grounds and, where possible, be supported by appropriate evidence. Furthermore, the business grounds for such requirements must be necessary and employers should be well-equipped to demonstrate why this is the case.
The principles of this case stretch wider than the facts suggest. For example, employers can commonly require employees to hold certain qualifications as part of a redundancy restructure process where new posts are being created (which may indirectly discriminate against older individuals). In such a case employers should have very clear evidence of the reasonable business grounds for any such requirement (for example by referring to clients’ needs/requirements). This will assist with demonstrating that the requirement is proportionate as well as legitimate.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2013. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
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