- It is a legitimate aim for police forces “to achieve efficiency by reducing officer numbers with certainty”.
- Police Forces had no other means of achieving certainty in their staff reductions other than by the use of A19, due to the limited ways in which officers can be dismissed.
- This finding demonstrates that the crucial question of whether a PCP is justified may depend on how the “legitimate aim” is phrased.
The case of West Midlands Police v Harrod has finally made its way to the Employment Appeal Tribunal, as it always seemed bound to do. The case concerns a challenge on the grounds of age discrimination to the use of Regulation A19 of the Police Pensions Regulations 1987 by seven police forces to dismiss groups of officers. This was one of the more controversial methods adopted by some police forces in order to ensure continued efficiency to meet the budgetary cuts imposed by the coalition government in 2010.
Retirement under Regulation A19
Readers will inevitably be aware that police officers have security of tenure. Thus there are a very limited number of ways in which a police officer may be dismissed, other than through misconduct/capability proceedings. Officers can be retired when they reach their normal retirement, or on the grounds of disablement. However, for those officers below the rank of Chief Superintendent, Regulation A19 also allows an officer to be retired if
- their retention would not be in the general interests of efficiency; and
- they have an entitlement to a pension worth two thirds of average pensionable pay (“⅔ APP”).
Officers only attain ⅔ APP once they have thirty years’ service, so A19 can only apply, at the earliest, to those officers reaching the age of forty-eight.
The use of regulation A19 in Harrod was unusual because before 2010 it had only been used to dismiss individual officers, rather than a group of them. Some indication of the controversial nature of the decision can be gleaned from the fact that of the twenty-seven police forces that sought legal advice on the matter, only seven decided to apply Regulation A19 in this way.
The officers dismissed as a result of this process brought indirect age discrimination claims against their Police Forces in the Employment Tribunal. They won their case and the Police Forces appealed.
Indirect age discrimination
Indirect discrimination is the application of a general provision, criterion or practice (“PCP”), such as a height requirement, which disproportionately disadvantages a particular group of people (such as women in the case of a height requirement). Indirect age discrimination arises where a superficially neutral PCP has a disproportionately negative effect on a particular age group. However, if a PCP is indirectly discriminatory, an employer can argue that its application was nevertheless lawful, because it was a proportionate means of achieving a legitimate aim. This is the defence referred to by discrimination lawyers refer to as “justification”.
The Employment Tribunal decision
In the original Employment Tribunal (ET) proceedings, it was accepted that A19 was a PCP that applied equally to officers of all ages, but which had a disproportionately negative impact on older officers, i.e. those over the age of 48. On the face of it, this application of A19 was indirectly discriminatory. The sole question for the ET was, therefore, whether the application of A19 to a cohort of police officers was justified.
The legitimate aim – accepted by the ET – was that of “achieving efficiency”. The focus of proceedings therefore shifted to whether the means of achieving it were “proportionate”.
The Police Forces’ argument was that the use of A19 was justified because the officers who were to be compulsorily retired would have a substantial financial cushion against what would otherwise have been the difficulties of facing redundancy.
In rejecting the Police Forces’ arguments, the ET held that the fact that the substantial majority of police officers chose to retire at ⅔ APP (approximately 80-95%) meant that it was “unrealistic to treat the saving obtained by the compulsory application of A19 as being the total salary saving from all officers who retire at ⅔ APP.” Because most officers would have retired in any event, it was a false analysis to suggest a police force was making large financial savings by the use of A19, given the small number of officers who did not want to retire.
The ET also held that the adoption of A19 ran contrary to the social policy of encouraging a proper range of ages within the workforce. It found that the use of A19 was not a proportionate means of achieving the legitimate aim because the forces had paid insufficient attention to the fact that most officers would have retired in any event and they misunderstood their barrister’s advice which suggested that the use of A19 was capable of being justified rather than it was in fact justified.
Finally, the ET criticised the Police Forces because they could have achieved their aim through less discriminatory means. The ET suggested that the forces could have: (1) asked officers what their intentions were before retiring them all; (2) introduced part time working; or (3) canvassed career breaks. The failure to consider those matters contributed to the finding that their actions were not justified.
What happened at the Employment Appeal Tribunal?
The Employment Appeal Tribunal (“EAT”) overturned the decision. The EAT decided, firstly, that the legitimate aim of the police forces was “to achieve efficiency by reducing officer numbers with certainty”. The second half of this formulation of the legitimate aim was therefore different from the mere aim of “achieving efficiency” which had been the basis for the ET’s analysis. The success of the appeal hinged on that finding because the EAT went on to hold that the Police Forces had no other means of achieving certainty in their staff reductions other than by the use of A19, due to the limited ways in which officers can be dismissed.
This finding demonstrates that the crucial question of whether a PCP is justified may depend on how the “legitimate aim” is phrased.
The EAT also rejected the alternatives proposed by the Employment Tribunal because they did not provide certainty. It criticised the Employment Tribunal for coming up with alternative schemes, holding that it should have instead focused on whether the application of A19 was necessary and appropriate, balancing the importance of achieving the aim against the discriminatory impact caused by the measure.
The EAT reiterated that a tribunal should not unnecessarily focus on the decision making process adopted by an employer at the time they implemented the policy: “What has to be shown to be justified is the outcome, not the process by which it is achieved” [emphasis added]. This does not mean that a failure to consider discrimination or alternative options is irrelevant: “[E]vidence that other means had been considered and rejected, for reasons which appeared good to the alleged discriminator at the time, may give confidence to a Tribunal in reaching its own decision that the measure was justified. Evidence it had not been considered might lead to a more intense scrutiny of whether a suggested alternative, involving less or even no discriminatory impact, might be or could have been adopted.”
The EAT went on to hold that the Employment Tribunal failed to consider the fact that Parliament had made a deliberate choice to restrict compulsory retirement to those who would have a financial cushion to alleviate its worst impact. It decided that, if the Employment Tribunal had weighed that against the policy of encouraging a proper range of ages within the workforce, the cushion would justify the negative impact on the range of ages within the workforce.
Importantly, the EAT found that, had the Police Forces merely applied a blanket policy of excluding every officer from the possibility of retention, the decision may not have been justified. The potential exception was that an officer would not be retired unless their particular skills could not immediately be replaced. This finding is not addressed in detail by the EAT. However, there is an important learning point for all of those that take managerial or operational decisions: it is often very difficult justify the blanket imposition of a rule which may have a discriminatory impact.
In an unusual postscript to the judgment, Langstaff J commented on the way in which the parties had characterised the claims. Because no officer could reach ⅔ APP before the age of 48, the criterion necessarily distinguished between those under 48 and those over 48. The criterion did not have a disproportionately negative impact on older employees: it only impacted older employees. In such cases, he suggested, the claim would have been more appropriately characterised as direct, rather than indirect, discrimination.
Could we see a Part III?
Given the importance of this case legally, practically and financially to both sides, it is no surprise that the claimants in the case have appealed to the Court of Appeal. My view is that whilst the EAT has probably arrived at the correct conclusion, it may have overstepped the mark in deciding the question of justification itself, rather than remitting the matter back to an ET to decide.
Furthermore, whilst the EAT raised the theoretical possibility of there being a fresh challenge by new test claimants based on direct age discrimination, my understanding is that there are no such plans afoot.
Whatever the final outcome, this case contains some important practical lessons that extend beyond the application of A19 to those making other difficult, potentially discriminatory decisions:
- While the ET is required to focus on the outcome, not the process that led to it, evidence of proper consultation and consideration of alternatives may nevertheless assist it in finding that the action taken was not discriminatory.
- In their keenness to treat everyone “equally”, police forces are often reluctant – or do not have the confidence – to allow individual considerations to lead to exceptions to a policy. However a blanket policy which is applied without exception will be more difficult to justify, and is therefore more likely to lead to a finding of unlawful discrimination.
This article was first published in Police Professional.