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Forcible retirement by reference to employees’ ages was not a proportionate means of achieving a legitimate aim

An employer who forced employees of a certain age to retire was pursuing a legitimate aim, but its actions were not necessary or proportionate and were therefore discriminatory, the Employment Tribunal (ET) has ruled.

Rules governing police pensions allow police authorities to force officers to retire if they are entitled to a particular level of pension, and it is in the general interests of efficiency. In practice, the rules mean only officers aged 48 or more can be forcibly retired. As a result of government cuts, a police authority used these rules to forcibly retire a number of officers.

The officers claimed indirect age discrimination, arguing this was a practice that placed older officers at a substantial disadvantage and was therefore discriminatory. It could not be objectively justified as a proportionate means of achieving a legitimate aim.

Although one reason for retiring the officers was cost, there were other reasons. The authority also believed it would maintain an effective and efficient police force and the ET ruled this was a legitimate aim.

However, the ET said forcibly retiring these officers was not a proportionate means of achieving that aim. It found that 80 to 95 per cent of the officers would have retired anyway, so the cost savings from forcibly retiring officers was ‘modest’, and the practice had a severe detrimental effect on those who would not have retired voluntarily. It also found there were several alternatives that could have achieved the same aim without being discriminatory, for instance stopping the recruitment of new officers.

The decision highlights two issues:

• the difficulties in showing forcible retirement is a proportionate means of achieving a legitimate aim;
• the longstanding rule (the ‘cost-plus’ rule) that cost is not, on its own, a legitimate aim justifying discrimination.

Recommendation

Employers considering retiring employees by relying on a provision, criteria or practice (PCP) that potentially discriminates against them because of their age (or any other protected characteristic such as sex or race) should ensure they show both a legitimate aim (not just cost) for doing so, and that the PCP is a proportionate means of achieving that aim. This is particularly important if non-discriminatory alternatives exist.

Case ref: Harrod v Chief Constable of West Midlands Police and others ET/1307406/2011

4 June 2014

Jonathan Waters has over 12 years of experience advising businesses in relation to commercial disputes and how to avoid or resolve them. He has a particular interest in construction law and adjudication, and he is currently studying for an Msc in Construction Law & Dispute Resolution at King’s College. Before starting Helix Law, he was the partner in charge of Commercial Litigation, Employment Law and Property Litigation at Stephen Rimmer LLP. He has a degree in Business Administration and before qualifying as a solicitor he worked in industry and investment banking for over a decade.

This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of  this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice. 

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