UK: Indirect age discrimination: applying new policy to existing staff may not be justified

The introduction of a new policy, such as qualification requirements for a particular job, can potentially amount to indirect discrimination in relation to a protected characteristic such as race or age.  If so, employers need to establish a legitimate aim and that the policy is justified to achieve this aim.  In considering justification, they should consider both whether the policy is justified generally and whether it is justified to apply it to existing staff as well as new recruits. 

In Homer v CC West Yorkshire Police, the Supreme Court had ruled that it was potentially indirect age discrimination to require a law degree for staff at the top of the grading structure (see here).  On its return to the tribunal, the judge ruled that although the policy was justified for new recruits, to improve the quality of staff recruited and retained, it was not justified to impose it on existing staff. The employer had argued that treating new and existing staff differently would give rise to legal and industrial relations problems.  The tribunal was unconvinced, given the possibility of adopting the "widespread practice" of red circling existing staff.

Although it was likely that a law degree would lead to a better calibre of adviser, there was no evidence of client demand for the existing advisors to be more highly qualified.  Equally there was no evidence that retention would be affected by an exception being made for existing staff.  It was therefore not appropriate or reasonably necessary to apply the new rule to existing staff.