Justifying indirect discrimination – leave the aim alone

30 March 2017

Grace Cheng looks at the Court of Appeal’s decision in Harrod and Others v. Chief Constable of West Midlands Police and Others, where the Court gives helpful guidance on the appropriate focus for tribunals considering indirect discrimination claims.

In Harrod, the Court of Appeal heard an appeal from a couple of hundred police officers who had brought a multiple claim for indirect age discrimination when compulsorily retired pursuant to Regulation A19 of the Police Pensions Regulations 1987 (1987 SI No. 257) (“the 1987 Regs”).

Facts of the case

The police are office holders rather than employees.  They do not have the ordinary protection against unfair dismissal, but there are also only very limited circumstances in which they can be dismissed.  One of those is under Reg A19 of the 1987 Regs.  That enables the compulsory retirement of policemen for reasons of increasing the efficiency of the force. Reg A19 can only be invoked once an officer has served 30 years, and is thereby entitled to a full pension of two-thirds of his average pensionable pay.  Since a person can become a police officer aged 18, enforced retirement could befall officers as young as 48, many years before normal pension age. Most officers retire voluntarily after 30 years’ service, so Reg A19 is rarely invoked.

In 2010 the new coalition government’s Comprehensive Spending Review required police forces to cut 20% from their budgets over four years. Seven police forces turned to the compulsory retirement power in Reg A19 to make the efficiency savings. No consideration was given to achieving those savings through other means, including seeing if any officers (both with 30 years’ service and with few years’ service) intended to leave anyway, nor were attempts made to establish whether they may wish to take a career break or move to working part-time. Instead, a blanket approach was adopted.

Procedural history

The case was heard by an employment tribunal during a five-week hearing in February and March 2013.  The claim was upheld, with the tribunal finding that the use of Reg A19 was not objectively justified given the failure to consider alternative approaches to making the efficiency savings.  Langstaff J (P) allowed an appeal by the police forces, finding that the policy of using Reg A19 to achieve the requisite efficiency savings was justified, and that the other options postulated did not provide certainty of achievement of the aim.  He also held there to be a lower standard of scrutiny where a general rule is prescribed by Parliament, than where it is prescribed by an individual employer.

Court of appeal decision

The Court of Appeal agreed with the EAT ansd dismissed the Claimants’ appeal.  The Court unanimously held that the actions of the Forces were objectively justified. Heavy reliance was placed by Bean LJ (giving the lead judgment) on Land Registry v Benson [2012] ICR 627 where it was held that not all measures with a discriminatory impact are unlawful and where a step-by-step guide was set out as to the approach that should be adopted in relation to such cases:

  1. First, the tribunal should identify the relevant provision, criterion or practice (‘PCP’) which has produced the alleged disparate impact.
  1. Secondly, the tribunal should identify the aim of the PCP. This should be distinguished from its means although the difference may not always be easy to draw.
  1. Thirdly, the tribunal should determine whether the relevant aim or aims of the PCP are ‘legitimate.
  1. Fourthly, the tribunal should determine whether the PCP is a proportionate means of satisfying the legitimate aim or aims.

Applying this approach, the PCP here was the use of Reg A19.  The aim was to achieve the maximum practicable reduction in the number of officers on grounds of efficiency, an aim that is unquestionably legitimate. Using Reg A19 to achieve that legitimate aim was, held the Court, clearly justifiable as it was the only lawful means for achieving that certainty.

The tribunal mistakenly assumed the police forces should be obliged as part of their aim to minimise dismissals, and considered proportionality through that prism.  That is why the tribunal concentrated on the alternatives to the number of dismissals enforced.  But that was not a legitimate route for the tribunal to take - it is not for the tribunal to question a management decision in that way.  The tribunal fell into the trap of eliding the disadvantage (dismissal) with discrimination, and of rejecting the police forces’ justification defence because a different aim could be pursued.

As an aside, the Court noted that argument over which of the categories of ‘provision’, ‘criterion’, or ‘practice’ a particular case fell into is unlikely to be helpful.  So long as the act falls within one of the PCP categories it did not matter which one.

The judgment of the Court of Appeal can be found here.