In order to save costs, polices forces across the country are being told to retire forcibly some of their most experienced officers.
Whilst many other public sector organisations are making redundancies to deal with impact of the cuts, this option is not available to the police force. Fully sworn officers are Crown servants, not employees, so cannot be made redundant.
Other than freezing recruitment, the only option to save costs and cut staff numbers is to implement “Regulation A19”. This little-used measure (contained in the Police Pensions Regulations 1987) states that all police below chief officer rank, with at least 30 years of service, can be "required to retire" if their retention would "not be in the general interests of efficiency".
However, such a policy would likely be age discriminatory. It would apply only those with 30 or more years service, and would therefore likely have a disparate impact on those aged 50 or more. The key issue for the police would be justification.
The main reason for making these retirements would be to save costs and this would surely feature as the thrust of any justification defence argued by the police.
Established law suggests that costs alone cannot justify discrimination; there must be some other factor. This is known as the “costs plus” argument and was established in Cross. Recently in the Woodcock case, the EAT has found the “costs plus” argument to be unconvincing, stating that “we find it hard to see the principled basis for a rule that such considerations can never by themselves constitute sufficient justification”. Woodcock is being appealed to the Court of Appeal and we are likely to see further development of the law in this area in the future.
As it is, the lawfulness of police forces’ plans to retire forcibly their senior officers is far from clear.
For further discussion on costs based justification, see “Windfalls, Woodcock and Wooster – cost based justification” by Andrew Short QC.