Toller Beattie

Inevitable Consequence of Age is Not Age Discrimination

In the first case on indirect age discrimination to reach the Court of Appeal, the Court has rule that the regulations only prohibit proven and unjustified age discrimination – not perceived unfairness.

The employee was a retired police officer who had subsequently worked for the Police National Legal Database (“PNLD”). After 10 years in his new position a new three stage salary structure was imposed. The employee successfully applied for the first two grades but was unsuccessful in his application for the third stage purely because he did not have a law degree. He was aged 60 at the time of the application and intended to retire at age 65 which would have left him with insufficient working time to complete a law degree part time whilst working.

The employee sought to argue that he had been indirectly discriminated against on grounds of his age because those employees aged 30-59 would have the opportunity to complete a law degree and therefore benefit from the stage three salary and status increase whereas those aged 60-65 would not. He also sought to argue that the degree requirement was not ‘a proportionate means of achieving a legitimate aim’. i.e. that equivalent skill and experience to a law degree should have been an acceptable alternative.

The Court of Appeal held that the particular disadvantage that employee claimed was not a consequence of unlawful age discrimination but arose from the ‘..fact of impending withdrawal from the workplace at 65’. According to Lord Justice Mummery, “..the object of the .. Regulations .. is not to legislate against the general unfairness of age, whether juvenile or geriatric.”

Employers should note, however, that such cases will depend upon their particular facts and any similar rules which have a disparate effect on different age groups will need to be carefully considered and justified.