Mass compulsory retirement - is it justifiable?

A recent case considered the decision of a number of police forces to compulsorily retire police officers and, in particular, the potentially discriminatory impact of this decision. Allison Cook reviews the ruling.

The case of Harrod v Chief Constable of West Midland Police and others related to the decision in 2010 - in response to serious budget cuts imposed by central government - by seven police forces to rely on Regulation A19 of the Police Pensions Regulations 1987 ('the Regulations') to impose compulsory retirement to officers who were entitled to at least two-thirds of their average pensionable pay. Police officers are not employees but are Officers of the Crown. As such, employment laws in respect of dismissal do not apply in the same way.

The Regulations allowed such measures to be taken by a police force, if it was in the 'general interest of efficiency'. The decision by the forces to follow Regulation A19 meant that those who had on average served 30 years were forced to retire. Only those who could not immediately be replaced were allowed to continue whilst other officers were trained to take over their role.

Two groups of police officers brought test cases to challenge this decision on the basis that it was indirect age discrimination. The Tribunal accepted that the imposition of compulsory mass retirement did prima facie indicate indirect age discrimination and therefore the real question was whether the discrimination could be justified. In order to be justified, the forces' decision needed to:

• have a legitimate aim;
• be proportionate;
• be necessary.

The Tribunal agreed that efficiency was a legitimate aim, even though the forces had based their decision mainly on cost.

In respect of the final two considerations, the forces hoped to rely on the fact that they had obtained counsel's opinion prior to its decision, who had held that the use of A19 was capable of justification. Some, but not all, of the forces had taken this as a sign to go ahead and had not considered justification fully. No alternative measures were considered. There were possible alternatives:

• asking other officers whether they intended to leave;
• asking whether any officers were proposing to retire;
• asking whether any officers wanted to take career breaks;
• asking whether any officers might want to work part-time.

In fact, the Tribunal pointed out that the majority of those officers forced to retire through Regulation A19 would have retired anyway. Those officers who wanted to continue to work were therefore severely punished through the loss of their career when it may not have been necessary.

Best practice

The case highlights the importance of always fully considering the justification behind management decisions. The mere possibility of an action being justified is not the same as actual justification. Employers should be wary to always consider alternatives to dismissal or redundancy.

Allison Cook is a Senior Associate at Veale Wasbrough Vizards. She can be contacted on 0117 314 5466 or This email address is being protected from spambots. You need JavaScript enabled to view it..