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. 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.
The judgment can be read here.
John Cavanagh KC and Christopher Knight appeared for the five Police Forces at every stage of the proceedings.
