Age Discrimination: justifying compulsory retirement
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The Supreme Court has confirmed that direct age discrimination can only be justified by reference to social policy objectives; the individual aims or needs of the employer are not necessarily sufficient. The aim must also be legitimate in the particular circumstances of the case; an aim which is potentially legitimate may not be so for the particular business concerned. Further, the means chosen to achieve the aim must be both appropriate and necessary – were there other, less discriminatory, measures which would achieve the aim?
Unlike other forms of direct discrimination, direct age discrimination can potentially be objectively justified. The default retirement age (DRA) was repealed in April 2011, meaning that compulsory retirement of any employee now amounts to direct age discrimination unless it is objectively justified. The DRA provisions never applied to partners.
A partner in a firm of solicitors was compulsorily retired at the end of 2006, the year of his 65th birthday. He brought a direct age discrimination claim. Dismissing his claim, an employment tribunal held that compulsory retirement was objectively justified; the legitimate aims identified were:
- Retaining associates by being able to offer them the opportunity of partnership after a reasonable period.
- Facilitating partnership and workforce planning with realistic expectations as to when vacancies would arise.
- Contributing to a congenial and supportive workplace culture by limiting expulsion of partners through performance management.
The EAT upheld his appeal. In its view, the tribunal had been entitled to find that compulsory retirement at a particular age achieved certain legitimate objectives. However, there was no evidence to support the Firm's assertion that a compulsory retirement age of 65 was a proportionate means of achieving the third aim identified (congeniality). Given this, the EAT remitted the case to the tribunal. The Court of Appeal subsequently upheld the EAT's decision. The partner appealed to the Supreme Court.
Supreme Court confirm test for objective justification of direct age discrimination
The Supreme Court confirmed that direct age discrimination can only be justified by reference to social policy objectives; the individual aims or needs of the employer are not necessarily sufficient. Here, the aims identified by the firm – namely inter-generational fairness and maintaining dignity - could potentially meet this requirement. However, the aim must also be legitimate in the particular circumstances of the case; an aim which is potentially legitimate may not be so for the particular business concerned. Further, the means chosen to achieve the aim must be both appropriate and necessary – were there other, less discriminatory, measures which would achieve the aim? The case was remitted back to the employment tribunal for consideration of whether the selection of the specific age of 65 was a proportionate means of achieving those aims in the circumstances of the particular business.
What does this mean in practice?
- To justify direct age discrimination (e.g. compulsory retirement) the employer’s legitimate aims must also be social policy objectives e.g. related to employment policy, the labour market or vocational training. These are aims in the public interest, distinguishable from purely individual reasons particular to the employer e.g. cost reduction or improving competitiveness. Flexibility for the employer is not in itself a legitimate aim;
- The following legitimate aims have been recognised in the context of direct age discrimination claims:
- promoting access to employment for younger people;
- the efficient planning of the departure and recruitment of staff;
- sharing employment opportunities fairly between the generations;
- ensuring a mix of generations of staff so as to promote the exchange of experience and new ideas; rewarding experience;
- cushioning the blow for long serving employees who might find it hard to find new employment if dismissed;
- facilitating the participation of older workers in the workforce;
- avoiding the need to dismiss employees on the ground that they are no longer capable of doing the job, which may be humiliating;
- avoiding disputes about an employee's fitness for work over a certain age.
- A potentially directly discriminatory measure must be appropriate to achieve its legitimate aims and necessary to do so. The gravity of its effect on the employee who is being discriminated against must be weighed against the importance of the legitimate aims identified.
Seldon v Clarkson Wright and Jakes (a partnership)  UKSC 16