Age discrimination must be justified

In Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15, West Yorkshire Police introduced a requirement that a legal advisor must have a law degree in order to enter the highest pay grade. Mr Homer, aged 61, was unable to obtain a law degree before he retired. Mr Homer claimed that the requirement amounted to unlawful indirect age discrimination.

The Supreme Court ruled that the requirement amounted to indirect age discrimination. But it remitted the case to the tribunal to reconsider whether the discrimination was lawful or justified.

Retirement Age

In Seldon v Clarkson Wright and Jakes (A Partnership) [2012] UKSC 16, Mr Seldon claimed that a retirement age of 65 amounted to unlawful direct discrimination. 

The Supreme Court (SC) said that the retirement age had three legitimate aims, i.e. staff retention; workplace planning; and performance management. Staff retention and workplace planning were directly related to the legitimate aim of sharing employment between generations of workers [see para. 56]. Performance management was directly related to the legitimate aim of avoiding the need to dismiss older workers on the grounds of poor performance [see para. 57].

The SC remitted the case to the tribunal to determine if the retirement age of 65 was a proportionate means of avoiding the need to dismiss older workers on the grounds of poor performance [see para. 68]. But the SC warned that if the employer already had performance management procedures in place - it may not be legitimate to avoid managing the performance of its older workers [see para. 61].

The Supreme Court also provided a list of legitimate aims that may be used to justify a direct age discrimination claim [see para. 50(4)].

Qualifying period for unfair dismissal

The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 [SI 2012/989], confirms that the qualifying period (QP) for unfair dismissal and a statement of reasons for dismissal will increase from one year to two years.

The two-year QP will apply to an employee whose employment began on or after 6 April 2012.

From 6 April 2012, an employment judge can sit alone for an unfair dismissal claim: Employment Tribunals Act 1996 (Tribunal Composition) Order 2012 [SI 2012/988].