On 7 November 2017 the Supreme Court announced that it was refusing permission to appeal against the Court of Appeal’s judgment in favour of five Police Forces who had used regulation A19 of the Police Pensions Regulations 1987 to compulsorily retire police officers as the result of cuts to police budgets.
The use of regulation A19 is prima facie indirectly discriminatory on the grounds of age and it requires justification. In 2012, 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. The EAT, Langstaff P, overturned the Tribunal and dismissed the claims. The claimant officers appealed to the Court of Appeal.
In Harrod & Others v Chief Constable of West Midlands Police & Others [2017] EWCA Civ 191 the Court of Appeal (Elias, Underhill & Bean LJJ) dismissed the appeals of the officers. All three members of the Court gave judgments. They emphasised that the decision of the Forces to reduce officer headcount to the fullest extent available was taken in the interests of achieving certainty of costs reduction, and it was not the Tribunal to devise an alternative scheme. The selection of officers to be retired – the only element which had a disparate impact and was prima facie indirectly age discriminatory – could not be impugned because no method of selection other than regulation A19 was lawful. It could not be disproportionate, notwithstanding that it involved the use of an age-discriminatory criterion, because there was no other legal way to reduce the headcount.
In refusing the officers permission to appeal against that judgment, the Supreme Court has finally brought to an end litigation which has lasted over five years, and confirmed the availability of regulation A19 to reduce officer numbers.
The judgment of the Court of Appeal can be read here and the Supreme Court’s announcement can be read here.
John Cavanagh KC and Christopher Knight appeared for the five Police Forces at every stage of the proceedings.
