Appeal No. UKEAT/0191/08/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 October 2008
Judgment handed down on 27 October 2008

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
DR B V FITZGERALD MBE LLD FRSA
MR H SINGH

CHIEF CONSTABLE OF WEST YORKSHIRE POLICE
THE WEST YORKSHIRE POLICE AUTHORITY AND OTHERS	APPELLANT

MR T HOMER	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR DAVID JONES
(of Counsel)
Instructed by:
West Yorkshire Police Legal Services
P O Box 9
Laburnum Road
WAKEFIELD
West Yorkshire
WF1 3QP
	
For the Respondent	MISS CERI WIDDETT
(of Counsel)
Instructed by:
Messrs McCormicks
Solicitors
Wharfedale House
37 East Parade
HARROGATE
HG1 5LQ	

SUMMARY
AGE DISCRIMINATION
The Tribunal found that the claimant had been discriminated on grounds of age.  The employers introduced a requirement that to be graded at the top grade, and to receive the higher salary linked to that grade, an employee had to have a law degree.  The claimant submitted that this was age discrimination.  The Tribunal agreed on the grounds that given his age - he was 61 - he was not able to obtain a degree before he retired, unlike younger workers who would be able to do so.  Accordingly, the Tribunal concluded that there was discrimination directed against those without a law degree who were within the 60-65 age bracket. The Tribunal considered the issue of justification but concluded that although the employers were seeking to achieve a legitimate objective, namely the recruitment and retention of staff of an appropriate quality, nonetheless the imposition of this criterion was not a proportionate means of achieving it. 

The EAT held that there was no discrimination. The claimant had suffered no particular disadvantage as a result of his age.  He was treated in precisely the same way as everyone else.  It was true that he could not materially benefit from any law degree he might obtain, but that was because his working life was limited.  Any improvement in terms which an employer gives will benefit older workers for a shorter period than younger ones.  Any disadvantage can properly be described as the consequence of age, but it is not the consequence of age discrimination.  

However, had the claimant been able to establish the requisite group disadvantage, the EAT would have upheld the finding that any age discrimination was not justified.

  

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	The Employment Tribunal, sitting in Leeds, unanimously found that the Chief Constable of West Yorkshire (the appellant) had indirectly discriminated against Mr Terence Homer (the claimant) on the ground of his age.  It was never alleged that he had been the subject of direct age discrimination.  The essential facts of the case are not in dispute.

2.	The claimant commenced employment with the Police National Legal Database (PNLD) on 2 October 1995. The claimant was appointed to the position of legal adviser. Prior to that he had worked for 30 years as a police inspector before retiring with the rank of detective inspector.

3.	PNLD is a department of West Yorkshire Police.  It provides legal advice, principally to police forces throughout England and Wales. All 43 police forces were subscribers by 2003. Since 2003 managerial control of PNLD has been carried out by an Advisory Board reporting to the Association of Chief Police Officers. 

4.	At the time of his appointment, the requirements for the post of legal adviser were either that (1) the post holder held a law degree or (2) the post holder held the equivalent of a law degree, or alternatively (3) the post holder had “exceptional experience/skills in criminal law, combined with a lesser qualification in law”.   The claimant did not have a law or equivalent degree but qualified by virtue of the third requirement.

5.	Subsequently, there appeared to have been new job profiles, each of which emphasised that a degree in law was “essential” for the post.  Two such amendments to the profile were made in 2004. The Tribunal therefore inferred that there must have been an intention to change the job profile for the job.

6.	A recruitment exercise was carried out after the second amendment to the role criteria in April 2004. One of those appointed, a Ms Radcliffe, did not in fact have a degree in law notwithstanding that it had by then been identified as an essential requirement. She was, however, three-quarters of the way through a degree at that time. The appointment was made by Mrs Croft, who was appointed business director for PLND in December 2003, and Ms Radcliffe’s appointment was approved by personnel. Mrs Croft accepted in evidence that whilst this was a one-off decision which involved a modification of the usual criteria, it was possible that in making future appointments the “essential” requirement for a law degree might be relaxed.

7.	Shortly after Mrs Croft’s appointment, she had a discussion with the claimant concerning the history of his employment within PNLD. She informed him that the employers would pay for him to undertake a law degree if he so wished. He did not want to do that, although he did not tell Mrs Croft that at the time. The Tribunal accepted the claimant’s evidence that he did not think it was worthwhile to undertake the onerous burden of doing the degree part time, given that he would not in any event qualify until after the date at which he proposed to retire, namely 65.

8.	Moreover, at the time of the discussion he did not appreciate that obtaining a degree may have any practical significance. As the Tribunal found, the pay increments awarded to the claimant up to that stage had been made without any reference whatsoever to the question of whether or not he had a law degree.

9.	By 2005 Mrs Croft was concerned about the ability of PNLD to obtain and retain suitable candidates for the legal posts. She considered that there were two principal problems: the first was that staff were underpaid by comparison with similarly qualified persons in the market place; the second was that there was no formal career structure.

10.	In 2005 PNLD secured the services of an external organisation, Michael Page Legal, who carried out an independent survey to carry out an assessment of the role and ascertain the market rate.  The aim was to provide information to assist in solving the problems relating to recruitment and retention. The report concluded that a career grading structure should be created and it also recommended salary increments up to a level of £35,000.  This involved an increase in the then current pay levels.

11.	Following this report a career structure with three thresholds was established and approved for the PNLD. The claimant made applications to be treated as complying with the first two thresholds, and he was successful and was re-graded accordingly. He then made an application with respect to the third threshold but this failed. The reason was that in order to qualify at the third level there were a range of criteria which had to be satisfied - nine in all - one of which was the need to have a law degree.  This the claimant did not have.

12.	Mrs Croft accepted before the Tribunal that the only basis on which the claimant failed to qualify for the third threshold was this lack of a law degree. He met the criteria in all other respects, and indeed Mrs Croft wholeheartedly supported his application but felt constrained by the rules to deny him this re-grading.  She confirmed, however, that the claimant had always been considered as an exception to the requirement to have a law degree.

13.	The claimant appealed the rejection to Acting Chief Constable Hodson, but was unsuccessful.  Subsequently he made further representations to Acting Chief Constable Hodson who considered his submissions but, with some reluctance, rejected the claimant’s application on the basis that it would: 
“not be appropriate or fair to those who have already acquired or may in the future acquire the relevant qualification to make an exception for the claimant.”

14.	The claimant then pursued a grievance which was unsuccessful, and this ultimately led to his claim before the Employment Tribunal for age discrimination. He also sought an uplift of compensation on the ground of non-compliance with the statutory grievance procedure. 

15.	The Tribunal made two other findings material to this appeal.  First, they concluded that there was a clear understanding between the claimant and Mrs Croft that the claimant would retire at 65. Second, the Tribunal noted that a law degree was not strictly the only route by which there could be compliance with the requirements for the third threshold. The requirement as stipulated was “a degree in law or similar fully completed”. 

16.	The Tribunal’s view was that neither Mrs Croft nor Acting Chief Constable Hodson appear to have appreciated the potential significance of this. They felt that it would, in fact, have allowed him to be re-graded to the third threshold in accordance with the criteria.  We would only observe that even if the Tribunal were correct about this (and the appellant submits that they were not) the failure properly to apply the rules would have no relevance to the particular claim of indirect age discrimination advanced by the claimant.

The law.
17.	The Employment Equality (Age) Regulations 2006 were enacted to implement the EU Equality Directive 2000/78/EC.  They came into force in October 2006 which was, in fact, after the re-grading scheme took effect.  

18.	The material provisions are found in regulation 3, which defines the concept of indirect discrimination as follows: 
	(1)		For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if -
i.	on grounds of B’s age, A treats B less favourably than he treats or would treat other persons, or
ii.	A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but – 
1.	which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and
2.	which puts B at that disadvantage,
and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.
(2) 		A comparison of B’s case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
(3)		In this regulation –
(a) “age group” means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages; and
(b) the reference in paragraph (1)(a) to B’s age includes B’s apparent age.”

The Tribunal’s decision.
19.	Having set out the facts in detail, the Tribunal rehearsed the relevant arguments and concluded that there had indeed been unlawful indirect age discrimination.  It is important to note that the case was advanced purely on the grounds that the claimant would not be able to complete the course prior to retiring: 
“The Tribunal finds it relevant to record that the claim of the Claimant was presented to the Tribunal on the basis that the Claimant had suffered a disadvantage because he was effectively prevented from achieving the qualification prior to his date of retirement. The Claimant did not present his case on the basis of any general disadvantage such as, for example, that persons aged 60 to 65 years were less likely to have a law degree than those of a different age group. No such argument was presented to the Tribunal and no evidence, including statistical evidence, was presented to the Tribunal to suggest that any argument ought to be considered by the Tribunal”

20.	The Tribunal first considered whether the need to have a law degree would put people in the same age group as the claimant, and did in fact put the claimant, at a “particular disadvantage” when compared with other persons. The Tribunal concluded that it would:
“…The unanimous decision of the Tribunal was that the age group of which the Claimant was a member was put at a particular disadvantage. The particular disadvantage was that the Claimant and others in his age group were prevented from reaching the 3rd Threshold established by the Respondent and were therefore prevented from achieving the appropriate status of that Threshold and equally were prevented from accessing the financial benefits of increased remuneration which would have been awarded to the Claimant had he been awarded 3rd Threshold status. By comparison, those of the age group of 30-59 were able to complete a law degree course, either full time or part time, before the normal retirement age of the Respondent, by comparison to those of the age group of the Claimant which was 60-65. The Tribunal therefore was satisfied that the age group of which the Claimant was a member was put at a “particular disadvantage.”

21.	We were told that the Tribunal itself identified the age range of 60-65 as being the disadvantaged group, although that particular age group was not specifically identified by the claimant. 

22.	The Tribunal went on to consider the question of justification.  They accepted that it was in principle a legitimate aim to adopt criteria to facilitate the recruitment and retention of staff of the appropriate quality. The issue was whether the means adopted were proportional to that aim. The Tribunal held that they were not.   In doing so, the Tribunal dealt at considerable length with the question of proportionality. They referred to ACAS guidance which stated that when answering the question ‘What is proportionate?” the following should be considered (para 23 of the decision):
“When answering the question “What is proportionate?” the ACAS guidance goes on to suggest that the following should be considered:-
(a) What the employer is doing must actually contribute to a legitimate aim and the employer ought to have evidence that the provisional criterion is actually contributing to that aim.
(b) The discriminatory effect should be significantly outweighed by the importance and benefits of the legitimate aim.
(c) The employer should have no reasonable alternative to the action that it is taking. If the legitimate aim can be achieved by a less or non-discriminatory means then these “must take precedence”.

23.	They rejected certain arguments advanced by the respondent in support of proportionality. In particular, they pointed out that there was nothing at all in the Page Report which lent support to the need to require a law degree as a requirement of being graded in the third threshold, or indeed any threshold. Nor was there any evidence that the change in the criteria had led to an improvement in the quality of the recruits in the two years since the change was made. 

24.	They then referred to the ACAS guidance, noting that it was for the employer to prove that there was no reasonable alternative available and they concluded that there was, namely that the law degree could be removed as an essential ingredient for obtaining employment.  The appropriate standard of recruits could have been established without this being required in all cases.  A requirement of appropriate skills and experience could have been imposed as an alternative to the law degree.  This was supported by the fact that Mrs Croft had indicated that the law degree would not necessarily always be considered essential.

25.	The Tribunal also noted that an exception could have been made for this claimant.  It would have been reasonable to have permitted him to be regarded to the third threshold even if he did fall outwith the established criteria.

26.	The Tribunal also noted that the policy adopted with respect to the third threshold did not in any sense achieve the objective of retaining current members of staff.  More specifically, the Tribunal considered that the respondents had failed to give appropriate weight in the balancing exercise to the need to retain the claimant.  If anything, the new criteria would tend to encourage the claimant to leave.

The grounds of appeal.
27.	There are two principal grounds of appeal. First, it is contended that the Tribunal erred in law in finding that there was a particular disadvantage to those in the claimant’s age group of 60-65. 

28.	  The principal contention here is that the requirement involves no discrimination against anyone of any age. If an employee does not have a degree in law, he or she will have to get one by taking an appropriate course in essentially the same way.  This is so whatever the employee’s age.  It was not intrinsically more difficult for an older worker to obtain the qualification and the claimant did not suggest that it was.

29.	A secondary point with respect to this ground is that the Tribunal acted on the assumption that the retiring age was 65 whereas, in fact, employees could remain until 70.  This would have required permission but there was evidence that it would probably have been forthcoming had the claimant asked.  So the assumption that the employee could not have gained the benefit of obtaining the degree was itself misconceived.  He chose to retire at 65 (apparently in the event he retired before that) but this was not a requirement of the job.  If he suffered a disadvantage as a result of his own choice, that should not give him a legal claim.

30.	The second ground alleges that the Tribunal erred in its conclusion that the discrimination was not justified.  The Tribunal erred because it suggested that the onus was on the employer to establish that no other policy was possible.  That is not correct. As the judgment of Pill LJ in Hardys and Hansons plc v Lax [2005] IRLR 726 para 32   demonstrates, it is only necessary to show that the proposal adopted was reasonably necessary; the employer does not have to show that no other proposal is possible. There were real practical difficulties in measuring whether a potential employee had skills commensurate with a law degree, and it was perverse to say that an employer could not require the latter as a condition of the highest payment.  

31.	Moreover, the Tribunal criticised the employers on the grounds that there was no evidence that the scheme had achieved its objective, but that was an unreasonable requirement given the very short period for which the scheme had been in place. Nor was the notion that a special exception should be made for the claimant a proper basis for finding disproportionality.  Either the criteria operated in a discriminatory way, in which case the issue of proportionality had to be considered for all in the disadvantaged group, or it did not, in which case there was nothing to justify.

32.   The claimant submits that the Tribunal’s conclusion was sustainable.  The issue was whether the age of the claimant caused the detriment.  Here it obviously did. But for his age he would not have been disadvantaged by not being able to take the benefit of a law degree.  It is now well established that there is a disadvantage if a worker would or might reasonably take the view that something is to his disadvantage: see the observations of Lord Hope in Shamoon v Royal Ulster Constabulary [2003] ICR 337 para 35.  (That case was concerned with whether there was a detriment, the concept adopted in older versions of discrimination. But his Lordship used the language of “detriment” and “disadvantage” interchangeably.)  A reasonable employee in the position of the claimant could clearly consider it to be to his disadvantage to have to work beyond the normal retirement age to be qualified for some benefit.

33.	As to justification, the Tribunal had approached the issue properly and in considerable detail. They had neither misdirected themselves nor reached a conclusion inconsistent with the evidence.

Conclusion. 
34.	We shall deal with the issues of particular disadvantage and justification in turn.
 
Particular disadvantage.
35.	In our judgment, this appeal succeeds on the first ground.  There was no basis for concluding that there was any particular disadvantage which affected persons falling within the age bracket of 60-65.  The appellant is right to say that all persons without a degree are treated in precisely the same way.  Whoever they are, and whatever their age, they have to acquire the degree before being eligible for the higher pay given to someone in the third threshold. The requirement for a degree is not something required only of those over a certain age. 

36.	 Nor is it in principle any more difficult for an older than a younger person to obtain the qualification.  The need for a degree does of course impose a barrier, but it is a barrier which applies to all alike.  It is not one which is affected by age. As the Tribunal pointed out, it was not suggested that the fact of requiring a degree was of itself prima facie indirect age discrimination requiring justification, on the grounds that the growth in higher education has resulted in significantly more younger than older workers being in possession of a degree.  That would have raised a different case.

37.	The complaint is that the claimant is so close to the retirement age that he could not in practice benefit from a law degree even if he had succeeded in obtaining it.  A younger person who qualifies will benefit potentially for a long period from the higher pay given to those who attain the third threshold.  That is correct, but it is equally true of any other benefit conferred on employees by the employer. 

38.	Take, for example, an employer who awards a very generous pay increase to all employees.  Someone within a couple of years of retirement will only have the benefit of that increase for a short period whereas a younger person would, assuming he or she stays employed in the post, have the benefit for considerably longer.  That does not mean that in giving such an increase across the board the employer is indirectly discriminating against older workers.  The same would be the case if the employer gave six months’ notice that the increase would be given and some workers retired in the interim and were therefore unable to take any benefit at all from the increased pay.

39.	In our judgment, the financial disadvantage - if it can properly be so described - resulting from the operation of this criterion is the inevitable consequence of age; it is not a consequence of age discrimination.  The disadvantage follows from the simple fact that it is necessary to be employed to earn pay; the shorter the remaining working life the less will be earned by way of future earnings.  It seems to us that the claimant’s case would require more favourable treatment for older workers to mitigate the fact that as they get older so their working lifespan decreases and the future value of benefits conferred by the employer is reduced.   That, however, is the human condition, and not even Parliament can change it. 

40.	 Moreover, if the Tribunal’s decision is correct, then it is difficult to see why those aged 55-60 could not equally say that they would, after taking the time to complete a degree, benefit far less than employees twenty years younger, as could those aged 55-60, and so on. It is not obvious why it should be age discrimination if, like the claimant, there is no chance to complete the degree and earn anything at all, but no discrimination if there is an earning opportunity for a very short period.  

41.	The inevitable fact is that the benefit, taken over a lifetime’s work, in terms of pay improvement for those who obtain a degree will vary directly with the number of years to retirement (assuming that the workers stay employed until then.)  The gradual and regular nature of a graph plotting age with advantage itself suggests that the requirement has nothing to do with age discrimination and everything to do with the consequence of age.  

42.	We therefore uphold the appeal on this basic ground.  However, had we found that there was a particular disadvantage, we would not have acceded to the appellant’s submission that there was no discrimination because the claimant could have remained until 70. First, there was no right to do so; he would have required permission and there was no guarantee that it would have been given.  

43.	In any event, he is entitled in the normal way to retire at 65 without any detrimental effect on his pension, and if an act would be discriminatory if he were to exercise that right, we do not consider that it could cease to be so on the basis that he could choose to waive that right.  It would still be a disadvantage to him if he could only avoid the discrimination by taking another step - namely, staying on beyond the retirement age - which was unpalatable to him.  In short, it is no answer to say that the claimant could avoid the detriment by choosing to carry on working; that would simply be swapping one detriment for another.

Justification.
44.	Similarly, if there were prima facie discrimination resulting from those aged over 60 being discriminated against, then we would have found that the Tribunal was entitled to conclude that such discrimination was not justified.  In that context it is, in our view, important to bear in mind that what has to be justified is the discriminatory effect of the unacceptable criterion.  In this case that is not the change in criteria for new recruits, nor even the requirement of a law degree for those seeking entry into the third threshold, but simply the imposition of this requirement for existing employees (as they may change from time to time) who are between the ages of 60 and 65.  

45.	It is difficult to see how it could ever improve recruitment to relax this requirement for those so close to retirement.  Equally, it is hard to see why it would assist retention of existing staff.  It may, of course, do so for those with a degree, because they would qualify for the third threshold and might be encouraged to stay to achieve that grade and the higher pay it brings. 

46.	But the issue is whether removing this requirement from those aged 60-65 would do so, and there is no conceivable reason why it should.  It is not as if there was some restriction on the number of employees who could at any one time be in the third threshold.  There would at least then be an argument that to re-grade the claimant might adversely affect the career prospects of others. But that was not the position.  So a modification of the criterion in the way suggested by the claimant would not affect those with a degree and would be improving the lot of those without one.  This analysis, at least in part, seems to reflect the Tribunal’s analysis.

47. 	However, we do accept some of the appellant’s criticisms of the Tribunal’s reasoning, which is convoluted on this point.  It seems to us that in places they did confuse the need to justify the changes in the criteria for recruitment with the change in the criteria for qualifying for the third threshold (although in fairness to the Tribunal, the submissions to them do not clearly seem to have distinguished these aspects).

48.	We also have reservations about other aspects of this part of the decision. We think there is force in the appellant’s submission that it is unjustified to put any real weight on the fact that there is no evidence in the short period subsequent to the changes having been made to demonstrate an improvement in the quality of recruits. An employer might be reasonably justified in making changes which he genuinely and on proper grounds considers will improve the standard of his work force and these may well be capable of justification, notwithstanding that with the benefit of hindsight the improvements which he reasonably anticipated were not realised. It is an error to think that concrete evidence is always necessary to establish justification, and the ACAS guidance should not be read in that way.  Justification may be established in an appropriate case by reasoned and rational judgment.  What is impermissible is a justification based simply on subjective impression or stereotyped assumptions.  Moreover, the timescale is in any case too short to reach any satisfactory conclusion on the point.  

49.	Nor do we think that the Tribunal was correct to say - if indeed it was intending to say - that the discrimination should have been avoided by making a personal exception of the claimant. If the imposition of the criterion of a law degree resulted in unjustified indirect discrimination, because the discriminatory effect was disproportionate to the aim, then all adversely affected by the rule must be treated equally. That may well have had the consequence that only the claimant might qualify, but it is not the same as creating an “ad hominem” exception for him.

Disposal
50.	In our judgment, this appeal succeeds. We do not think there was any age discrimination in the criterion adopted by the Chief Constable for the third threshold. 

51.	We reach that conclusion with some reluctance because each of us considers that the claimant’s application to be re-graded had considerable merit.  It is difficult to see why the employers could not have made an exception for the claimant; he had been treated as an exception in other ways. It was widely recognised that his work was as valuable as that provided by others who were able to qualify for the third threshold.  But the sole issue we have to determine is whether the failure to re-grade him amounted to age discrimination, and for the reasons we have given, we are satisfied that it did not.  Accordingly, we substitute a finding that there was no age discrimination in this case.