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5 March 2013

Requirement for degree was age discrimination

Following remission from the Supreme Court, an employment tribunal has decided that the requirement for an employee to hold a law degree in order to progress up the career structure was not objectively justified and was therefore discriminatory on the grounds of age. 

The facts

Mr Homer was employed as a legal adviser for the police service. Upon his appointment, legal advisers were required to have either a law degree (which Mr Homer did not have) or “exceptional experience/skills in criminal law, combined with a lesser qualification in law” (which, given his 30 years experience as a police officer, he was deemed to have).

The police service subsequently identified that it was failing to pay its legal advisers full market rates and reasoned that its lack of a formal career structure was the main obstacle preventing the recruitment and retention of suitable candidates. It consequently introduced a three-tiered salary structure, under which an adviser needed a law degree in order to qualify for a salary at the highest level.

Because of Mr Homer’s age, it was not possible for him to obtain a degree prior to reaching his then compulsory retirement age of 65. As a result, he was not able to progress to the highest salary level.

Mr Homer appreciated the desire to recruit highly qualified staff, but argued that existing staff could have been exempted from the requirement to hold a law degree under the new structure.

Mr Homer brought a claim for indirect age discrimination which reached the Supreme Court in 2012.  The Supreme Court ruled that the requirement for a degree was indirectly discriminatory, and remitted the case to a fresh employment tribunal to consider whether the police’s policy was a proportionate means of achieving a legitimate aim and therefore the indirect discrimination was justified.

Decision

An employment tribunal has now ruled that the requirement for a law degree was not objectively justified and therefore, Mr Homer’s claim for indirect age discrimination succeeded.

There was no evidence that clients of the service had requested advisers that were more highly qualified, or that prospective clients were insisting on being given advice only by those with a degree. It was not, therefore, necessary to require existing advisers to hold a law degree in order to progress to the highest salary band.

The tribunal also rejected the police’s argument that it would have been impracticable and unfair to apply different rules to existing staff and new recruits, citing final salary pension schemes as a common example of incoming and existing staff operating under different terms and conditions.

Comment

The case is a good illustration that tribunals will not simply accept at face value an employer’s assessment of the risks and problems it would have faced had it followed a less-discriminatory course of action (in this case, not imposing the requirement for a degree on existing members of staff).  The tribunal in this case noted that the employer’s evidence of the problems it would have faced was based on unconvincing generalisations. 

It is important to note that the tribunal did not rule that introducing the requirement for a law degree for all staff was a discriminatory requirement, and it is generally likely to be much easier for employers to justify imposing such a requirement for new recruits.