Police to appeal against EAT decision on age discrimination 4 September 2015
An appeal has been filed against the Employment Appeal Tribunal’s (EAT) ruling that a regulation enabling police forces to compulsorily retire officers after they become entitled to a pension worth at least two-thirds of pensionable pay (typically after 30 years’ service) is not age discriminatory.
With thanks to Employee Benefits for a summary of the case
The judgment in the case of Harrod and others v Chief Constable of West Midlands Police and others was delivered on 8 July 2015.
In the case, the EAT overturned the employment tribunal decision that five police forces committed age discrimination when they liberally utilised the A19 rule, which allows forces to require police officers to retire once he or she is entitled to a pension of two-thirds of pensionable pay. This is generally the case after 30 years’ service.
Police forces’ adoption of the A19 rule increased as budgets were substantially cut and the forces had to find new ways, alongside traditional methods such as a recruitment freeze, to cut expenditure.
The employment tribunal originally found that the widespread practice of requiring officers to retire on these grounds was not a proportionate means of achieving a legitimate aim. It took into account that there were other ways in which the forces could have cut costs. However, the EAT held that, while discrimination potentially occurred when the forces applied the. A19 regulation to retire police officers, the tribunal had been wrong to conclude that the forces’ actions were not justified. The EAT stated that the tribunal had made a misguided attempt to propose alternative means of cost savings. None of the alternative means proposed had the required degree of certainty.
The claims were brought against the police forces of Devon and Cornwall, Nottinghamshire, the West Midlands, North Wales and South Wales. A total of 15 police forces in England and Wales have made use of the A19 rule.
This follows the case of Sturmey v Weymouth and Portland Borough Council , in which the EAT returned the case to a tribunal for a re-hearing to consider whether redundancy dismissal, where the timing meant an employer avoided significant pension costs, could amount to age discrimination .
Long-term sick employee not assigned under TUPE 8 September 2015
Can an employee who is permanently off work sick be assigned to an organised grouping of employees in the event of a TUPE transfer?
No, held the EAT in BT Managed Services Ltd v Edwards.
With thanks to Daniel Barnett’s employment law bulletin which provides the details of the case.
The Claimant, a field operations engineer, had been off work for over 5 years with no indication of him ever returning. He had received PHI benefits, until that was exhausted, then discretionary sick pay. He remained 'on the books' of a particular unit. When that unit transferred from BT Managed Services to Ericsson, an employment tribunal held that Mr Edwards did not transfer as he was not assigned to the grouping of transferred employees. Dismissing the appeal, the EAT held that to be assigned to an organised grouping, an absent employee "will generally require some level of participation or, in the case of temporary absence, an expectation of future participation in carrying-out the relevant activities on behalf of the client" and contrasted permanent inability with long-term sick or maternity leave, where the absence might be regarded as temporary. An administrative connection with a transferring grouping (e.g. for pastoral purposes) would not suffice for a transfer: "Mere administrative connection to that grouping is insufficient to constitute an employee as being assigned to the grouping in the absence of some participation in the grouping's economic activity."
CIPP Policy News Journal
25/04/2016, Page 76 of 453
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