Not indirect discrimination to retire police officers by implementation of A19

Is it indirectly discriminatory on the grounds of age to retire police officers compulsorily by using A19 of the Police Pensions Regulations 1987 in…

Executive summary

Is it indirectly discriminatory on the grounds of age to  retire police officers compulsorily by using A19 of the Police Pensions Regulations 1987 in order to achieve budgetary certainty?  No, held the EAT in West Midlands Police v Harrod & Ors.

Background

The Comprehensive Spending Review, following the election of the Coalition Government in 2010, required forces to make 20% cuts in their budgets over the following 4 years, front loaded as to the first 2 years. The forces therefore had to find a way of achieving efficient policing within substantially less resource. Since 80% of their costs related to staffing, it was inevitable that forces would look to a reduction in the number of police officers.

The five forces concerned in this appeal used the power provided by A19 of the Police Pensions Regulations 1987 to  retire compulsorily a substantial number of officers who had become entitled to a pension worth ⅔ annual pensionable pay (‘APP’). In order to achieve an annual pension at this level, an officer would need a minimum 30 years’ service. Accordingly, utilisation of A19 had the effect of disadvantaging officers over 48 years old who wished to continue in service until Regulation A18 retirement at age 60 (ranks) or 65 (superintendent).

The key question before the tribunal at first instance was whether age discrimination through implementation of A19 could be justified; i.e. was it a proportionate means of achieving a legitimate aim?

The tribunal decided that the implementation of A19 was not a proportionate means of achieving a legitimate aim. It thought the forces had placed insufficient emphasis on the fact that most officers voluntarily retire once they had achieved an annual pension of ⅔ APP and there had been generally insufficient focus on finding alternative means of avoiding the detriment of a compulsory loss of career.

Overturning the tribunal's judgment, the EAT found that the only way the forces could be certain of a reduction in officer numbers was by use of A19, since there was no other power to make a police officer redundant, and the implementation of A19 was therefore justified.

Decision

The main thrust of the appeal was that the tribunal had lost focus of the fact that Parliament had decided though the drafting of the Regulations that it should be for forces to decide whether A19 should be used in particular circumstances and there was nothing separately about the way in which the forces in this case adopted or applied A19 that was itself a further act of discrimination. In short, the discriminatory element was entirely Parliament’s choice.

A19 was concerned not just with the promotion of efficiency but was also aimed at fairness, in that only officers with the ‘cushion’ of a ⅔ APP pension could be required to retire.

The tribunal had failed to respect the force’s decision on the allocation of its resources with a view to maximising efficiency in the face of swingeing cuts and imposed too high a standard of scrutiny in its evaluation of objective justification.

A key factor in the decision of the EAT to overturn the decision of the tribunal was that no alternative means of achieving the aim of the forces could provide the certainty of saving which the evidence had established was essential. Since there was no way the forces could have achieved their aims other than by use of A19, they were justified in doing so.

Comment

We represented one of the forces involved.

The decision to implement A19 was one contemplated by many forces and the five forces that implemented it and found themselves the subject of this litigation did so following intensive budgetary planning and as a last resort in response to swingeing budget cuts. Leading Counsel’s advice was taken before implementation.

The original tribunal decision all but negated the ability of forces to use A19 and, in the absence of any ability to make officers redundant, left forces in the unenviable position of needing certainty in budget reduction without any realistic way of implementing a compulsory early retirement.

The EAT decision essentially revives the ability of forces to decide whether A19 should be used in particular circumstances and, provided a non discriminatory process is adopted and there are no other less discriminatory means of achieving the efficiency available, it remains an option.

It is possible that this decision could be appealed to the Court of Appeal. There is also a passage in the judgment which raises a new question undecided by this appeal, which might impact upon the future operation of A19. If you are intending to apply A19, we would recommend taking specific advice.

As we were involved with one of the forces at the outset of the due diligence as to whether A19 should be implemented and we represented the force at the tribunal hearing, for further information please contact Steve Peacock, Partner on 0151 242 7955 or steve.peacock@weightmans.com

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