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In the recent case of Harrod v West Midlands Police and others, the London Central Employment Tribunal found that the compulsory retirement of a large number of police officers by the use of Regulation A19 Police Pensions Regulations 1987 (‘the 1987 Regulations’) amounted to indirect age discrimination.

Police officers have security of tenure, subject to a limited number of exceptions. The routes by which an officer can be removed from office without his or her permission are all governed, in some form or other, by regulations.

Regulation A18 of the 1987 Regulations provides that police officers can be retired at a given default retirement age and regulation A20 provides for retirement of the grounds of disablement.

Regulation A19 permits police and crime commissioners (PCCs – formerly the police authorities) to require an officer of the rank of chief superintendent or below to retire if their retention would not be in the general interests of efficiency, provided that they have achieved service that would entitle them to a pension of two-thirds average pensionable pay (‘2/3APP’).

Generally, officers to whom A19 can be applied will have served 30 years and will be at least 48.

Between 80 per cent and 95 per cent of officers voluntarily retire on 2/3APP.

Historically, A19 has been used only where there was a lack of effectiveness of an individual officer. However, given the substantial reductions in their budgets following the election of the current government, advice was sought by a forum of senior police human resources (HR) professionals as to whether A19 could be used to retire a cohort of officers. That is, whether it could be used to retire officers en-masse to achieve the desired budget reduction.

Legal advice was received to the effect that the use of A19 would be, on the face of it, indirect age discrimination: indirect discrimination occurs where an employer deploys a provision, criterion or practice (‘PCP’) that applies equally to everyone but has a disproportionate, negative impact on people within a particular group (‘disparate impact’). The textbook example would be a minimum height requirement that required all police officers to be 5ft 7in. That would be a criterion which would apply to everyone but that would have a disparate impact on women, who would, as a group, be less likely to meet the criterion.

PCPs that have a disparate impact can be “justified” provided an employment tribunal accepts that the PCP is proportionate means of achieving a legitimate aim. If a PCP is justified, then the employer is not considered to have discriminated against the individual. The advice received was that, although the PCP had a disparate impact on older officers, the application of A19 was capable of justification.

On the basis of that advice, seven out of the 27 police authorities decided to implement regulation A19 to achieve budgetary savings. The other 20 used alternative mechanisms. The seven police authorities decided that all officers who had 2/3APP would be required to retire, unless their particular skills could not immediately be replaced. In practice that meant almost all 2/3APP officers were retired. The near universal application of A19 meant that more officers would leave than was required, so that, despite substantial budget reduction, most police authorities recorded an under spend when operating A19.

The employment tribunal case

A claim was brought before the London Central Employment Tribunal by officers of differing ranks below the Association of Chief Police Officer (ACPO) ranks. It was argued that the application of A19 by the police authorities amounted to indirect age discrimination.

A19 is a provision, criterion or practice that was applied equally to officers of all ages but had a disparate impact on older officers. It was therefore accepted by the police authorities that the practice was on the face of it indirectly discriminatory. The question for the employment tribunal was whether A19 was justified. That is, whether its application was