The Supreme Court yesterday unanimously dismissed Mr Seldon's appeal in this long running age discrimination case.
Lady Hale's lead Judgment analysed the scope of the defence of "justification" in direct age discrimination.
Following an analysis of relevant European law it was held that the "justification test" is different depending on whether the discrimination is direct or indirect.
For employers to be able to rely on an aim as legitimate, in the case of direct age discrimination (e.g. forced retirement cases), these aims have to fit in with public interest/social policy objectives i.e. they cannot purely relate to the employer's private commercial interests. Further, the means to achieve any such legitimate aim must be appropriate and reasonably necessary.
The Supreme Court expressly approved as legitimate aims; staff retention and work force planning. These aims refer to sharing out job applications within the generations. The aim of "retiring" people before they need to be managed out for incapability the "dignity aim" was also considered a legitimate aim but reservations were clearly expressed about this aim and the danger of stereotypical assumptions; that is to say linking declining performance with increasing age.
However, the issue of whether selecting the arbitrary age of 65 was a proportionate means of achieving a legitimate aim was referred back to the Employment Tribunal. Analysing Mr Seldon's position as at the time of the original forced retirement in 2006 (under the Partnership Deed) when the UK still had a default retirement age of 65 (as long as certain procedures were followed), might enable this particular case to pass the proportionality test. That was, however, firmly left to the Employment Tribunal once it hears that aspect of the case.
From a close reading of the Judgment we suggest that it may be less easy now that a default retirement age procedure has been abolished to demonstrate that 65, as opposed to say, 70, or 75 would pass the proportionality test. In summary:-
• Forced retirement is still possible;
• The potential legitimate aims in direct age discrimination cases are narrower than previously thought and must fit in with public interest/social policy aims;
• It will be harder in future to show that proportionate and necessary means of achieving a legitimate aim is demonstrated, for example picking an arbitrary age such as 65.
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