Beyond the headline, Seldon judgement is a victory for older workers

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.

Read a blog by The Age and Employment Network about the Seldon case

Find out more about Age UK’s equality and human rights work

Voicing our expectations of the Government

This blog was contributed by Tom Wright CBE, Chief Executive of Age UK

I spoke at the Conservative party conference in Manchester this week about our ageing society, alongside Oliver Letwin MP, Daniel Poulter MP and our ambassador Diana Moran. This was part of Age UK’s work across the three main political party conferences.

It was an opportunity to voice our expectations of the Government and emphasise the contribution that older people make to our society.

I’m sure you will all agree that it is great news that the population is ageing well and living longer – it is one of the best achievements of this century. We must not see ageing a burden but as a contribution to our society.

We need to make it easier for older people to contribute. The removal of the Default Retirement Age means older people can no longer be prevented from working simply on the grounds of age. It is also important that we recognise the importance of volunteering and the contribution that older people make in their communities. At Age UK we have 70,000 volunteers of which three quarters are older people.

In my response I set out three issues that the Government and the party could deliver and which could transform the lives of older people by 2015:

  • Abolish pensioner poverty by overhauling the means tested state pensions system and create a universal pension of £140 paid to all.
  • Implement reform of social care, to end the unfairness of the current social care system.
  • Older people being valued and contributing to society so that their experience can be used to shape their communities.

Other contributors to this debate had interesting things to say. Daniel Poulter pledged that the Government would address the underfunding of care; this is a key issue for Age UK. We are calling for the Government to take action to reform our care system by acting on the recommendations of the Dilnot’s Commission’s report on the Funding of Care and Support.

From a personal point of view, Diana Moran spoke about the needs of an ageing population. She said that it was important that different services worked together and that individuals were given the information they need to stay independent. Diana felt that this was particularly important for people who are less fortunate and less well.

At Age UK we very much agree; we must work together if we are going to make our country a better place to grow old. We are all living longer; let’s make the most of it together

Find out more about our party conference activity

 

 

 

 

 

Five years on: what impact have the Age Regulations really had?

With the end of the Default Retirement Age gaining much attention over the weekend, 1 October 2011 also marked another, perhaps less newsworthy, milestone – it was the fifth anniversary of the implementation of the Employment Equality (Age) Regulations.

The regulations made age discrimination in employment illegal, and gave workers aged 65+ rights regarding unfair dismissal and redundancy.

It was an attempt to make a clear statement against age discrimination, but one which failed because of a huge anomaly contained within it.

As well as the regulations’ good points, they also included a new policy – the Default Retirement Age – which allowed employers to forcibly retire people aged 65 and above for no reason other than their age.

What impact have the Regulations had?

To mark this anniversary, Age UK has looked at the practical impact of the regulations on employer policies and practice towards older workers. Continue reading “Five years on: what impact have the Age Regulations really had?”

Scrapping the Default Retirement Age – is this the end of age discrimination in the workplace?

Saturday 1 October could be the day Britain finally turns its back on age discrimination in the workplace once and for all. It’s the day that the Default Retirement Age, which gave employers the right to fire people aged 65 and over purely because of their age, is abolished.

From this date, for the first time, people over 65 will get full employment rights, ending the grossly unfair policy of employers being able without reason to remove someone from their workforce for the simple reason of their age.

The end of the DRA is the result of several years of campaigning by Age UK, and is a welcome victory for individual choice and economic independence – important principles in a modern liberal democracy.

Jobseekers over 50 statistically find it harder to find a job than any other age group, and there are now over 100,000 people in this age group who have been out of work for 2 years or more. Continue reading “Scrapping the Default Retirement Age – is this the end of age discrimination in the workplace?”

The end of forced retirement – today!

The 6th of April 2011 marks a milestone in the employment rights of older workers. Employers will no longer be able to issue forced retirement notices to their 65+ workers, meaning that for the first time employees in this age group will have the same legal protection as their younger colleagues.

Such a step has been needed for years, and can surely only be a positive move for the 900,000 people – and rising – who already work beyond age 65.  Chart 1 shows the upwards trend in people working at age 65 and above, and how this has increased by over 50 per cent going back to May 2005. While not everyone wants to continue to work after 65, for those who do the end of forced retirement will restore personal choice and economic independence, allowing people continue to build pension provision and benefit from the social networks that many workplaces bring.

Chart 1: numbers in employment aged 65+

So we congratulate the Government for sticking to their guns and ending this deeply unfair practice.

There have, however, been a couple of minor changes to the transitional arrangements. The Department for Business, Innovation and Skills had originally proposed having a blanket end to forced retirement on 30 September 2011 i.e. within six months of the last notice-issuing day (yesterday). However, last minute changes to the transitional arrangements have meant that employers will still be able to give up to a years notice to their employees – providing they are 65 before October 2011– meaning workers could be forced out until April 2012. In addition, it will still be possible to agree an extension of up to a furher six months, meaning the final forced retirements could take place as far away as October 2012. This is disappointing for many, but for some it will be considered preferable to being forced out of work immediately.

So what’s likely to happen in the post-DRA world? Continue reading “The end of forced retirement – today!”