The Police Pension Regulations 1987 allow for the forced retirement of police officers where their retirement would be in the general interest of the efficiency of the force. This power can only be used against officers who have served long enough to be in receipt of two thirds of their pension and therefore means that only officers over the age of 48 can be forced to retire.
Indirect discrimination such as this is not unlawful if it is justified as a proportionate way of achieving a legitimate aim.
It is important to note at the outset that this case involves police officers, who are not considered employees.
In this case, Mr Harrod (the lead claimant) and the other claimants worked for West Midlands Police (WM Police) and were forced to retire in a drive to make manpower savings. The claimants brought a successful claim of indirect age discrimination at the Employment Tribunal (ET), which held that WM Police could not justify the decision as they could have taken alternative means to achieve their aim.
WM Police appealed and the EAT upheld the appeal. While it did not dispute that this power was potentially discriminatory, it stated that the ET had erred in considering whether WM Police's decision was a reasonably necessary means of achieving a legitimate aim. The ET had not considered whether the decision was proportionate but instead focused on the process and reasoning behind it. The EAT held that, as police officers are not employees, redundancy was not an option and so forced retirement was the only available route to make the required savings. WM Police's actions were therefore justified.
In addition, the EAT noted that the restriction in relation to those who are eligible for enforced retirement was put in place to ensure that only those best able to cope financially are subject to it. The ET had failed to consider Parliament's intention behind this power and the social policy underpinning the restriction on its use.
Best Practice
This case turns heavily on its facts, in particular that redundancy was not an option due to the legal status of the police officers and employers should treat this decision cautiously. Although it is possible to objectively justify a discriminatory, or potentially discriminatory, provision, criterion or practice (PCP), this will involve showing that PCP is both for a legitimate aim and a proportionate means of achieving that legitimate aim. We would always recommend that employers seek advice to avoid any potential claims of discrimination.