Do we have the right to force retirement again?
No sooner has the government abolished the retirement age of 65 than the Supreme Court appears to have reinstated it in the case of Seldon v Clarkson Wright and Jakes . But do not go rushing to retire anyone over 65 – the show’s not over yet.
Mr Seldon was a partner at a law firm. He was forced to retire at 65 because his fellow partners said they wanted to open up promotion prospects for younger lawyers, plan for the future and avoid humiliating performance management if he began to fall short in his work. He claimed age discrimination. Unusually, an employer can quite blatantly discriminate because of age if they can justify what they have done. They must have a legitimate aim and use proportionate means to reach that aim.
Mr Seldon lost at the Supreme Court, which decided that the firm’s aims were legitimate because they reflected wider social policy aims of getting younger people into work and avoiding the indignity of performance managing older employees.
This has relevance not only for partnerships but for all employees. If an employer can show that it is retiring someone for reasons which mirror wider social policy aims, it will have a legitimate aim. That goes for measures relating to keeping older workers too because it is a social policy objective also to encourage older people to continue in paid employment and to encourage diversity in the workplace.
Employers must however, also satisfy the other part of the justification test. A retirement age must be appropriate and necessary. An employer cannot just decide that everyone over the age of 65 must go because they want to promote younger people. They must show that there is a real need to do this and that there is no other, less discriminatory way of reaching this aim.
Mr Seldon has to return to the Employment Tribunal which will decide whether the firm’s policy was proportionate. As for the practical consequences of this decision, it will make it easier for an employer to put in place its own compulsory retirement age and justify it on specific grounds.
This decision is not carte blanche for employers to enforce retirement. As John Wadham of the Equality and Human Rights Commission said:
“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.”