Friday, 30 April 2010

Requirement of Holding a Degree Not Age Discrimination

In the first case involving Age Discrimination has been considered in a substantive appeal in the higher court, The Court of Appeal has handed down its decision that requiring an employee to hold a degree in order to qualify for a higher pay grade did not amount to indirect age discrimination...

in Homer v Chief Constable of West Yorkshire Police, the requirement that an employee to have a degree in order to qualify for a higher pay grade was deemed not amount to indirect age discrimination. The argument put forward by the Appellant was in essence that an older employee would not have time to obtain such a qualification before retirement. This was on the basis that the particular disadvantage to the employee flowed from the fact of his imminent retirement rather than his age.

On consideration of the law below, Lord Justice Maurice Kay stated: 'The appellant's case is not one of a particular disadvantage but one of a claim for more favourable treatment on account of age'.

This case, however involved a question of law - the case did not present factual evidence to show that the employee's age group would be less likely to have a law degree, or would find it harder to reach that requirement.

The relevant domestic law is to be found in the Employment Equality (Age) Regulations 2006. Regulation 3 provides:

"(1) For the purposes of these Regulations, a person (A) discriminates against another person (B) if –

(a) on grounds of B's age, A treats B less favourably than he treats or would treat other persons, or

(b) 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

(i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and

(ii) 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 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 … "

Thus, Regulation 3(1)(a) prohibits direct discrimination and Regulation 3(1)(b) prohibits unjustified, that is disproportionate, indirect discrimination. The approach is similar, but not identical, to the approach in other domestic anti-discrimination legislation.

[2010] EWCA Civ 419 Case No: A2/2008/2793