Employment & HR - colourful people chain image

Can a request for certain requirements put employees near retirement at a disadvantage?

In the case of Homer v Chief Constable of West Yorkshire Police Mr Homer an ex-police officer who was employed by the Police National Legal Database as a legal advisor, brought a claim for indirect age discrimination against the West Yorkshire Police. In 2004 a new job profile was introduced setting out criteria for the top grade, one of which was that employees hold a law degree. Mr Homer applied for the top grade position but his application was rejected as he did not have a law degree. Mr Homer argued that at 61 he was unable to complete the degree before retiring.

The Supreme Court ruled that the West Yorkshire Police’s policy of restricting promotion at a certain level to employees who had obtained a law degree had put Mr Homer at a disadvantage on the grounds of age. They held that the criteria were indirectly discriminatory against employees without a law degree who would be unable (due to time constraints) to obtain one before retirement. The case was remitted to an employment tribunal on justification.

What is indirect age discrimination?

Indirect age discrimination occurs when you apply a provision, criteria or practice which although applied to all employees regardless of age, has the effect of disadvantaging applicants or employees of a particular age group, unless the practice can be justified.

Younger employees can also be indirectly discriminated against on the grounds of age, for example if you advertise a vacancy where you require 10 years of experience in a certain field, younger applicants may not have been working for this length of time due to their age. This could be indirect age discrimination if you fail to show there is a real business need for this selection criterion.

How to avoid indirect age discrimination?

  • Review all company literature and job and promotion advertisements, removing any reference to ageist language;
  • Look at how and where you advertise your job vacancies to ensure you reach the whole market;
  • Think carefully about whether any provision, criteria or practice disadvantages any group of employees, or applicants and if so whether the practice can be objectively justified; and
  • Value your senior employees and their experience and put methods in place to allow their knowledge to be shared with more junior members of staff.