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65 and you're out! Supreme Court rules on enforced retirement

The Supreme Court judgment in Seldon v Clarkson Wright and others justifying direct age discrimination needs to be pegged to an objective which is in the public interest, not one that has anything to do with an employer’s individual situation.

Yes, this is another case involving a law firm. Hurrah.  Mr Seldon, a partner in the firm of Clarkson Wright, was forced to retire at 65 under a provision of the partnership agreement.  Mr Seldon complained that this was direct discrimination on the grounds of age, but Clarkson Wright said that unfortunately it had to be that way for a variety of reasons, including, to put it bluntly, clearing the decks at the top end to make space for other solicitors in the firm to aim for partnership.

The case is by no means over, but the Supreme Court has been clear on its guidance for justifying direct discrimination. They have said that the test for justifying direct discrimination is much narrower than justifying indirect discrimination.  The question to be asked is broadly: is the employer’s desired objective of a public interest nature?  Examples of public interest already identified by the European courts include “inter-generational fairness” and “dignity”.  So, an employer’s desire to save costs, or to streamline its organisation will not count as grounds for justification.

This case is far from over.  Aside from looking at whether or not Clarkson Wright’s reasons for retiring Mr Seldon were for public interest reasons, the case is going back to the Tribunal to decide a whole raft of other issues, including whether or not enforced retirement was a “proportionate means of achieving a legitimate aim”.  That’s the next step in the chain. 

Already, commentators are saying that this is great news for employers and not so great for employees.  We’re not so sure.  Arguably employers will have to work harder to make sure that their reasons fit into this very narrow category otherwise their justification argument will fail.

So, the steps in the chain in basic terms are:

  • Is what you are doing direct discrimination?
  • If so, make sure your reason involves a public interest, and isn’t just for your own organisation’s reasons. 
  • Is there any other way of achieving what you want to do?  Gather your evidence to show that what you are doing to achieve your aim is proportionate.  (For example in this case, you should look at gathering evidence to show that compulsory retirement is required, but further that the age of 65 is the right age to pick.)

This article was contributed by Mark Mimms at mpm legal.  He can be contacted at mark@mpmlegal.co.uk

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