Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15

In brief

The claimant was required to hold a law degree to reach the highest pay grade at work. He could not complete the degree before retirement at age 65, so the requirement excluded him. The Supreme Court held the requirement indirectly discriminatory on grounds of age under regulation 3 of the Employment Equality (Age) Regulations 2006, but did not decide justification, which it remitted to the employment tribunal; whether there was unlawful discrimination was therefore not finally decided (paras 9, 17–18, 26). The provision, criterion or practice (the law-degree requirement) put persons approaching retirement at a particular disadvantage. The employer then had to show that the requirement was justified; the regulation applies where the employer cannot show the requirement to be a proportionate means of achieving a legitimate aim, and the Court does not describe this as a shift of burden (paras 9, 19). The court clarified the PCP/justification framework for indirect-discrimination cases.

Key provisions

• paras-9-17 — The PCP/disadvantage/justification framework for indirect discrimination : The three elements are in regulation 3 (para 9): a provision, criterion or practice; one that puts persons sharing the protected characteristic at a particular disadvantage; and the employer's inability to show it to be a proportionate means of achieving a legitimate aim. Paras 14–17 reject the employer's comparison argument: the earlier disparate-impact formulation was replaced, so that now all that is needed is a particular disadvantage (para 14). The judgment uses no burden-shifting language; the employer must show justification (paras 9, 19).
• paras-19-25 — Objective justification — proportionate means of achieving legitimate aim : Where particular disadvantage is shown the respondent must demonstrate that the PCP is a proportionate means of achieving a legitimate aim (paras 9, 19). The three-stage test (sufficiently important objective, rational connection, no more than necessary) is quoted at para 20. Paras 22–25 require a measure that is appropriate and reasonably necessary, a weighing of its discriminatory impact against the importance of the aim, and consideration of whether non-discriminatory alternatives were available.

When relevant

Any s.19 indirect discrimination case, Arguments about PCP framing and disadvantage pool, Challenges to respondent's justification evidence