The London Central employment tribunal found that the West Midlands Police Forces’ ruling of compulsory retirement for large numbers of serving police officers under rule A19 of the Police Pension Regulations 1987 following budget cuts was not justified and amounted to unlawful indirect discrimination.

Regulation A19 permits a police authority to require an officer to retire if it considers their retention in the force is not “in the general interests of efficiency of the force”. Such officers must be of at least 48 years of age, eligible for pension pay with at least 30 years’ service in the forces.

Following the General Election, May 2010, the Comprehensive Spending Review required budget cuts in the police forces of 20% over four years. After looking at various expenditures, the Forces turned their attention to staffing costs which amount to 80% of police expenditure. Advice was initially sought by 27 Forces as to the legality of using regulation A19 to retire a unit of officers. Only seven police forces then decided on a policy of retiring all officers who, under regulation A19 were eligible unless their particular skills were such that they could not be immediately replaced and so would retain those individuals until such a time that the other officers could be trained accordingly to take over. Although there was a large number of officers which would have retired in due course, alternatives to compulsory retirement were not considered for those who wanted to remain in post. The remaining twenty Forces went on to use other saving mechanisms to meet the necessary savings.

This resulted in a large number of officers, supported by their trade unions, bringing age discrimination claims in employment tribunals, of which, five were selected to be heard together.

The primary aim of the compulsory retirement was cost saving and increased efficiency which were legitimate aims from a public law point of view. However a breach of discrimination law was not considered.

The Forces’ policy of using it to remove a whole group of officers had added to the discriminatory effect especially as it removes, even for a short period of time, an entire age group from the workforce. The tribunal found that “justification requires more than a search for legitimate aims that can be put forward to support a decision that the Force wishes to take and to protect against legal challenge”. The Forces had legitimate aims but failed to give adequate consideration as to whether the use of A19 was fair and necessary to find achieve those aims.

This is an urgent call for employers to focus on alternatives when considering compulsory retirement such as part-time work or career breaks. Or if the alternatives are not applicable, retirement could be considered by an exercise based on an analysis of skill.
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
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