Yesterday the Supreme Court handed down its judgement on the case of Leslie Seldon, a solicitor who took on his employers over the legitimacy of its forced retirement policy.
It lands a blow in the fight against age discrimination, cementing the abolition of the Default Retirement Age and making it clear that it will be very difficult for employers to justify forced retirement.
But in order to see its potential impact, we need to look beyond the headlines.
While Mr Seldon had his appeal dismissed, and parts of his case will have to be re-examined by an Employment Tribunal, much of the judgement is a significant victory for those of us who believe that everyone should be treated equally regardless of age.
The majority of the judgement relates not to Mr Seldon’s specific case, but to the principles on which direct age discrimination can be allowed.
While it is still possible to justify discrimination (this was never really in doubt), the new ruling ensures there are additional safeguards which should protect older workers against forced retirement and direct age discrimination.
The Seldon judgement raises the bar on the level of proof needed by employers if they wish to force someone to retire, setting out that employers will have to meet a number of tests in order to prove that their aim in discriminating is ‘appropriate and necessary’.
Some key points here are:
- The employers objectives in forcing someone to retire will have to relate directly to government policy rather than being simply private.
- The policy aims must have a genuine application to the individual’s situation, and cannot be crudely tacked on to window-dress justification.
- The ‘gravity of the effect upon the employees discriminated against’ should be considered.
- Flexibility for the employer is not a legitimate aim (although it can be a relevant factor in some circumstances).
- Forced retirement has to be proven as the least discriminatory means possible to achieve the legitimate aim.
- Performance management should be used wherever possible rather than making assumptions relating to age.
An employer will not, as is being reported in some media, simply be able to say that they are retiring someone ‘to promote intergenerational fairness’ – while this may be a legitimate aim in some circumstances, a substantial level of proof is required to ensure it genuinely applies to the particular role in question, and that there is no better way of achieving this objective.
Crucially the judgement effectively rubbishes the argument that it’s more dignified to force someone out of work than have ‘unseemly’ conversations about capability. Again, this can be a legitimate aim but in most cases it will simply be stereotyping.
Overall it seems the Supreme Court has handed down a balanced and fair judgement, which sets the level of proof needed for direct discrimination at an appropriate and fair level.
While the judgement does continue to allow the justification of age discrimination, we are optimistic that it serves the interests of many older workers.
Of course the proof of the pudding is in the eating, and we will have to wait and see how this is all interpreted in the Employment Tribunals and lower level courts.
In any case, we hope that employers do not go down the route of attempting to justify discrimination. Instead, investing resources in developing good age-neutral management systems will improve performance of staff across the workforce while delivering other business benefits like improved staff retention and better utilisation of skills.
Helping employers do this is where the Government’s emphasis should now lie.