A Supreme Court ruling in a key direct age discrimination case is a reminder to employers that a worker’s age should not be “shorthand” on which to base their ability to do their job, says the Equality and Human Rights Commission (EHRC).
In the ruling, delivered on 25 April, the court dismissed an appeal by solicitor Leslie Seldon, a partner in the Kent law firm of Clarkson, Wright and Jakes, who was forced to retire when he reached the age of 65 in 2006.
At the time, the default retirement age (DRA) of 65 still existed – it was scrapped in October 2011 – but as a partner rather than an employee, this did not apply to Mr Seldon. However, 65 had been agreed in the firm’s partnership agreement as the mandatory retirement age.
Mr Seldon – now 71 and still working as a notary – took his case to an Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal and, after losing in all three, to the Supreme Court.
The Supreme Court ruled that the retiring of partners enabled the firm to retain younger solicitors who might otherwise go elsewhere by opening up partnership opportunities and was a “legitimate” aim of the partnership.
However, the court sent the case back to the Employment Tribunal “to consider whether the choice of a mandatory age of 65 was a proportionate means of achieving the legitimate aims of the partnership”.
John Wadham from the EHRC, which is funding and running Mr Seldon’s case, said it was a reminder to employers “that a worker’s age is not shorthand for their competence and should never be used in that way”.
He added: “Every employer must think carefully about whether it really needs to have a policy that directly or indirectly discriminates against people based on their age. The court has made it clear that such policies must be justified on a case by case basis.”
Barrister Caspar Glyn QC commented: “Any employer which still has a policy of compulsory retirement would be well advised to review this in the light of the court’s remarks.”
Employers may still be able to retire employees lawfully at a set age provided that the retirement age can be objectively justified “as a proportionate response to a legitimate aim”.
According to guidance from employment relations specialist Acas, employers would need to justify such a policy by ensuring that the retirement age meets the legitimate aim test, for instance in workforce planning (the need for business to recruit, retain and provide promotion opportunities and effectively manage succession) or the health and safety of individual employees, their colleagues and the general public.
