In Harrod and others -v- Chief Constable of West Midlands Police and others the Court of Appeal has upheld a previous decision that mass retirement of officers implemented by a number of police forces was not discriminatory on the basis of age.
The case centred on a decision by a number of police forces to implement cost savings by reducing the number of officers in post. The reduction in officer numbers was carried out by use of “regulation A19” which provides for the compulsory retirement of officers with service of 30 years or more. Claims were brought by groups of officers affected on the basis that the use of A19 was indirectly discriminatory on the basis of age as it affected older officers who were more likely to have service of 30 years or more.
On the face of it, the use of A19 was indirectly discriminatory on the basis of age but the finding of the Employment Appeal Tribunal and the Court of Appeal was that the potentially discriminatory affect was justified in view of the substantial costs savings required and the fact that the forces had no other legal way to reduce officer numbers.
Employers may take comfort from the fact that the court confirmed the general principle in employment law that it is not for an Employment Tribunal to scrutinise a business decision. However, caution should be applied when an employer is considering implementing any decision (such as the choice of selection criteria when selecting for redundancy) which may discriminate on the basis of age. Justification of any such decision will likely be heavily scrutinised and evidence will be needed to show the legitimate aim that is being pursued, the impact on affected employees and that consideration has been given to alternative action.
The case highlighted is arguably fairly unique in its application to the public sector, and the police particularly, rather than a general guide for all employers.