Posted on Feb 24, 2014 in Employment by Amy Jones
Age discrimination has been unlawful since 2006 and the default retirement age was removed in 2011 meaning employers are no longer able to retire employees at a particular age automatically.
Case Update: Harrod v Chief Constable of West Midlands Police and others
Age discrimination has been unlawful since 2006 and the default retirement age was removed in 2011 meaning employers are no longer able to retire employees at a particular age automatically. To do so without being able to objectively justify it (i.e. have a legitimate business aim and establish that a default retirement age is a proportionate means of achieving the aim) could well result in a claim of age discrimination. Under previous case law (Cross and others v British Airways plc) the position was that a wish to save money cannot, on its own, amount to a legitimate aim capable of justifying indirect discrimination, although cost considerations may be taken into account along with other factors. This is sometimes known as the "cost-plus" rule.
In the Harrod case (which consisted of 5 test cases), the Employment Tribunal (“ET”) considered whether seven police forces’ (“the Police”) use of regulation A19 of the Police Pension Regulations 1987 to require the compulsory retirement of officers to meet budget cuts imposed by government amounted to indirect age discrimination. Having already implemented a recruitment freeze and made redundancies in civilian roles, the justification of the Police for a compulsory retirement age for police officers was cost savings and improved efficiency.
Whilst the ET accepted that cost saving and increased efficiency were legitimate aims, it disagreed that a compulsory retirement age was a proportionate means of achieving those aims. The ET found that the majority of police officers would have retired in any event and the Police had not adequately considered alternatives to compulsory retirement for the relatively small numbers who did not wish to retire, e.g. part-time working, career breaks or a selection exercise based on an analysis of skills. Therefore, the Police’s implementation of a compulsory retirement age amounted to indirect age discrimination.
It is likely that this decision will be appealed and we will keep you posted regarding any developments. However, it appears to be the case that justifying the use of a compulsory retirement age is not an easy hurdle to overcome and employers must think very carefully about what their legitimate business aim is and whether there are other ways of achieving that aim. We are happy to meet with employers to discuss their business needs and assist in the development of a strategy to achieve it whilst minimising the risks of potential claims.