The Equality Act allows employers to discriminate against their employees as long as they can objectively justify it. In Chief Constable of West Midlands Police and ors v Harrod and ors, the Court of Appeal held that the job of tribunals was not to challenge an employer's legitimate decision about how they allocate resources and whether they represent a genuine "need"; but rather to balance it against the impact complained of.
Basic facts
As a result of significant budget cuts, five forces decided to reduce their staff numbers by using the power provided under Regulation A19 of the Police Pension Regulations 1987 which allowed them in the “general interests of efficiency” to retire officers who qualified for two thirds of their pension. As officers had to have served for 30 years to qualify and the minimum entry age was 18, this regulation disadvantaged anyone over 48. A number of officers claimed indirect discrimination on the basis of age under section 19 of the Equality Act 2010.
Relevant law
Section 19 states that there is indirect discrimination if an employer applies a “provision, criterion or practice” (PCP) to a relevant characteristic which puts workers who share that characteristic at a particular disadvantage compared with those who do not and it cannot be shown that it is a “proportionate means of achieving a legitimate aim”.
Tribunal and EAT decisions
Although increasing efficiency was a legitimate aim, the tribunal held that the five police forces could have found alternative ways of achieving their aim rather than relying entirely on Regulation A19. For instance, by offering part-time working and/or career breaks. Their failure to consider the alternatives meant that the defence of justification failed.
The EAT overturned the tribunal decision on the basis that the use of A19 was appropriate and reasonably necessary in the circumstances.
Decision of Court of Appeal
Acknowledging that the selection process undoubtedly gave rise to prima facie discrimination on the ground of age, the Court of Appeal held that was inevitably the effect of applying the criteria in Regulation A19. Under the Regulations no one else was eligible to be dismissed as part of a cost saving measure apart from the officers selected. The question was whether applying Regulation 19 was a proportionate means of achieving a legitimate aim.
According to the Court of Appeal, “the right way to characterise the forces' aim is that they wished to achieve the maximum practicable reduction in the numbers of their officers. That is unquestionably a legitimate aim”. As the power available under Regulation A19 was the only way to achieve that aim, its use could not be said to be disproportionate, although it involved the application of an age-discriminatory criterion.
Even if the forces could have afforded to take a different approach which had less impact on their officers, the test to be applied by tribunals was not one of “absolute necessity” but rather what was “reasonably necessary”. As such, the job of the tribunal was not to challenge the employer's legitimate decision about how they allocate resources and whether they represent a genuine "need"; but rather to balance it against the impact complained of. As with a redundancy situation, the decision to reduce the officer headcount to the fullest extent available was taken in the interests of achieving certainty of costs reduction and it was not for the tribunal to devise an alternative scheme involving the loss of fewer posts.
Finally the Court held that the decision to confine dismissals to officers with more than 30 years' service should not be criticised either, because no other method of selection was lawful under the Regulations. The only possible conclusion was that the actions of the five forces were justified and the claims for age discrimination should therefore be rejected.