In the wake of the Comprehensive Spending Review in 2010, Police Forces across England and Wales had their budgets cut by 20%. As a result, all Forces sought to make significant savings to improve their efficiency. Many Forces included within their plans a reduction in the number of police officers. Police officers could not be made redundant. However, an officer can be compulsorily retired in the general interests of efficiency of the Force, but only where he has become entitled to his full two-thirds pension entitlement (which is gained following thirty years’ pensionable service): regulation A19 of the Police Pensions Regulations 1987.
The use of regulation A19 is prima facie indirectly discriminatory on the grounds of age and it requires justification. Test cases of age discrimination were brought against five of the Forces which used A19: Devon & Cornwall, Nottinghamshire, West Midlands, North Wales and South Wales. In a judgment of 5 February 2014 the Employment Tribunal held that the Forces had not justified their use of regulation A19, and it had accordingly been an act of age discrimination.
However, in Chief Constable of West Midlands Police & Others v Harrod & Others (UKEAT/0189/14/DA) Langstaff J (President of the EAT) allowed the appeal of the Forces. He held that the only discriminatory element of the selection of the officers for retirement was regulation A19 itself, which was the choice of Parliament. The Tribunal had wrongly overlooked that, failed to consider the justification of the scheme actually adopted by the Forces (instead of a scheme the Tribunal might have chosen, which would have been directed towards a different aim), wrongly took into account and criticised the process followed rather than the substantive outcome and applied too high a standard of scrutiny.
Langstaff J not only allowed the appeal but also held that the use of A19 was the only way in which the Forces could have achieved their aims, the use of A19 was accordingly reasonably necessary and the Tribunal could not have concluded otherwise. The age discrimination claims brought by the officer claimants were dismissed.
The judgment can be read here.
John Cavanagh KC and Christopher Knight appeared for the five Police Forces.
Related press: read here.
