The shifting sands of age discrimination law

Posted 08/10/2012

Two years ago an employer could retire a 65 year old employee, but legal changes since then have made it very difficult for lawyers to give clear advice to employers on retirement.

Where public safety is an issue – in the case of fire fighters, soldiers, pilots and so on – a retirement age can be justified.  However, where other employees are concerned, employers will need to negotiate the shifting (or perhaps, sinking) sands of age discrimination law and, as we shall see, it may be difficult to know exactly where to draw that proverbial line.  

Back in April this year, the Supreme Court decided an appeal brought by Mr Leslie Seldon, a former partner in a Kent law firm. Mr Seldon (supported by Age UK) was appealing against his forced retirement at 65 in line with the terms of the partnership deed. Normally, unlawful discrimination against individuals such as employees can’t be justified, but age discrimination is unusual in this respect in that it is possible for a discriminating party to “justify” what is known as direct discrimination.  

In this case, the employer tried to justify a retirement age of 65 on the basis that this gave younger lawyers a chance of partnership, facilitated workforce planning and limited the need to remove older partners on incapability grounds. The Supreme Court agreed that these were legitimate aims and sent the matter back to the Employment Tribunal for it to decide whether 65 was an “appropriate and necessary” retirement age. We are still waiting for this decision.

Since then, the European Court in the case of Hornfeldt v Posten Meddelande, has gone one step further and decided that the Swedish Postal Services Agency could enforce a retirement age of 67 on the basis that this would:avoid humiliating older workers with employers having to address capability issues;facilitate the use of a whole career pension scheme;enable employees to work beyond 65 more easily;enable employers to adapt to demographic developments and anticipate likely labour shortages;establish a right but not an obligation to work to 67;make it easier for young people to enter the labour market.Of course, the problem for employers is being able to second guess the courts and reverting to setting a compulsory retirement age may, in the immortal words of Yes Minister’s Sir Humphrey Appleby, be “a brave decision”. Nevertheless, we do seem to be moving towards completion of the circle, which could simply be a very roundabout way of shifting the retirement age from 65 to 67, a practice which has already been adopted by some employers. If you would like advice on retirement or age discrimination, please contact Caroline Banwell.