Discrimination: how far can business decisions be criticised?

In this case, West Midlands Police Force was initially criticised by the Employment Tribunal for making efficiencies by retiring service men and women over the age of 48. The Employment Tribunal said they were guilty of discrimination because there were other ways they could have made the efficiencies which were less impactful on the older members of the force. But just how far was the Tribunal able to criticise the approach taken by the police force?

Background

Police Pension Regulations 1987 allow police officers to be retired once they reach the age of 48. This was the route chosen by West Midlands Police Force when it needed to save on its wage bill.

Obviously, as the policy only affected service members over the age of 48, it was indirectly discriminatory on grounds of age. The Force therefore needed to legally justify the process by showing that it was a “proportionate means of achieving a legitimate aim”.

The Tribunal initially hearing the case conjectured other ways that the police force could have made the savings they needed. However, the Appeal Tribunal held that the Tribunal should not have scrutinised the management decisions of the police force to the extent that it questioned the number of staff that they required or how they would prioritise their resources. This involved the Tribunal, said the EAT, in unrealistic speculation and did not focus on the Police Pension Regulations, which specifically envisaged this type of activity.

Implications

This case draws a very difficult line in terms of the lengths an employer needs to go to in order to show that decisions they have made that are indirectly discriminatory are proportionate and therefore legally justified.

Obviously, if Claimants in age discrimination cases argue that management decisions they have been the victim of were not proportionate, they will need to put forward alternative ways in which the process being criticised could have been done more proportionately.

The EAT in this case has drawn the line in terms of questioning resourcing decisions, but the case could easily have gone the other way. If anything, the case illustrates the flexibility Tribunals have when looking at the question of proportionality, and how difficult it can be to prove this one way or the other.

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