This morning, the Supreme Court has handed down two Judgments concerning age discrimination.
The first is Homer v Chief Constable of West Yorkshire Police  UKSC 12 which concerns indirect discrimination and what is meant by someone being “put” at a disadvantage.
Mr Homer was a legal advisor working on the Police National Legal Database. A regrading exercise took place as there was a difficulty in attracting candidates of a suitable calibre to the role. Mr Homer under the previous grading structure was at the top of the scale due to his skills and experience. However, under the new grading structure, the absence of a law degree meant that he would not be graded at that level.
At the time of the regrading, Mr Homer was 62 years of age and due to retire at 65. A law degree would take four years to study part time.
Lady Hale provided the leading Judgment. In the Court of Appeal and EAT, it was held that Mr Homer was “put” at a disadvantage because of his impending retirement, not his age. Without the retirement, Mr Homer would have been able to work towards the degree.
At paragraph 13, Lady Hale describes this analysis as having “alarming consequences for the law of discrimination generally” and uses the example of a PCP which requires an employee to have a beard. Under the previous analysis, the fact that a woman could not grow a beard, would not put her at a disadvantage because of her sex, because she would be compared with someone who could not grow a beard because of immaturity.
This is an interesting point because as those readers who have acted in indirect discrimination claims, there can often be a range of arguments over the ingredients of an indirect claim, before the issue of justification is even reached. Guidance from the highest court is to be welcomed in this area.
The Supreme Court has remitted the issue of justification to be decided by the Tribunal.