The claimant alleged indirect age discrimination, in not having received a promotion to a post of legal adviser to the defendant. He did not have a law degree and did not want to undertake the study required which would have him acquiring the degree only after retirement. The EAT had allowed the employer’s appeal finding no ‘particular disadvantage’ affecting people within the claimant’s age group comparators.
Held: The employee’s appeal failed. What put Mr Homer at a disadvantage was not his age but his impending retirement. Had it not been for that, he would have been able to obtain a degree and reach the third threshold. He had not established a particular group or individual disadvantage related to age. The essential question was ‘did the introduction and application of the law degree provision put the appellant and others in his age group at a particular disadvantage?’ The ET had been wrong to find a particular disadvantage.
Maurice Kay LJ said: ‘the claimed disadvantage in relation to status is not sustainable because, on close analysis, it is no different from the perceived disadvantage in relation to remuneration. Whatever his age had been on the introduction of the provision, criteria or practice, the appellant would have failed to achieve the status of the third threshold unless and until he obtained the requisite degree. The fact that, as a man in his sixties, he would not have time to enjoy the status between graduation and retirement is no different from the fact that he would have no opportunity to enjoy the increased remuneration.’
Mummery LJ said: ‘what is prohibited is not perceived unfairness as such but proven unjustified age discrimination. That is defined as either direct and overt by reference to treatment on the ground of age or indirect and covert in the form of a particular disadvantage resulting from the application of an apparently neutral provision impacting disparately on age.’
Judges:
Mummery LJ, Maurice Kay LJ, Richards LJ
Citations:
[2010] EWCA Civ 419, [2010] ICR 987, [2010] IRLR 619
Links:
Statutes:
Equal Treatment Framework Directive (2000/78/EC), Employment Equality (Age) Regulations 2006 83
Jurisdiction:
England and Wales
Citing:
Cited – Age UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
Appeal from – West Yorkshire Police and others v Homer EAT 27-Oct-2008
EAT AGE DISCRIMINATION
The Tribunal found that the claimant had been discriminated on grounds of age. The employers introduced a requirement that to be graded at the top grade, and to receive the higher . .
Cited by:
Appeal from – Homer v Chief Constable of West Yorkshire Police SC 25-Apr-2012
The appellant had failed in his claim for indirect age discrimination. Approaching retirement, he complained that new conditions allowing advancement to graduates only, discriminated against him since he could not complete a degree before retiring. . .
Lists of cited by and citing cases may be incomplete.
Discrimination, Employment
Updated: 17 August 2022; Ref: scu.408607
