Employers should only impose requirements for job holders to have a degree if these can be justified. Where an employee was coming up to compulsory retirement age and therefore had insufficient time to acquire the degree required to be on the highest grade, this was a disadvantage on grounds of age that required justification, according to the Supreme Court in Homer v CC West Yorkshire Police.
The Court of Appeal had ruled that the disadvantage to employees aged 60-65 was caused by the fact of their imminent retirement and not by their age (see our April 2010 ebulletin). The Supreme Court rejected this distinction, holding that retirement is inextricably linked with age in a context where employees faced compulsory retirement at 65. The Supreme Court ruled that it was not appropriate, when considering whether there was age-related disadvantage, to compare those nearing compulsory retirement with those nearing leaving for some other reason such as family reasons, given that the latter group have some choice in the matter.
The case was remitted to the tribunal to consider justification. As the issue was indirect rather than direct age discrimination, it was not necessary for the employer to establish public interest aims, but it did need to show a real business need and that the requirement was an appropriate and reasonably necessary means of achieving its aims. The Supreme Court noted that this will involve comparing the impact of the requirement on the employee (in this case, the loss of additional salary and pension associated with the higher grade) with the importance of the aim to the employer. The tribunal will also need to consider the availability of non-discriminatory alternatives, such as a modified requirement (for all employees) or ‘grandfathering’ existing employees.
Lady Hale’s leading judgment placed much importance on the employer’s compulsory retirement age, leaving it unclear whether there might be scope to differentiate the position where there is no such compulsion. However, Lord Hope considered that forcing an employee to work on beyond the date he could reasonably expect to retire, in order to obtain the benefit of the degree, was itself indirect age discrimination. In any event, a claimant might well be able to show that older employees would be less likely to have a law degree given the growth in higher education over recent years, thereby shifting the burden to the employer to justify the requirement. Employers should therefore consider carefully whether a degree requirement really is needed or whether some form of experience or different qualification can be accepted as an alternative.