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)].
2 comments:
No retirement age - this is the best way to avoid the legal pitfalls of justifying a retirement age.
It's easy to state a legitimate aim but it's more difficult to show that the retirement age was proportionate means of achieving the aim.
I like staff retention/workforce planning as legitimate aims but performance management is very dodgy.
I agree.
The “performance management” aim may have been accepted by the ECJ as a legitimate aim for purpose of justifying a direct age discrimination claim. But I wouldn’t rely on it to justify a retirement age.
However, see the ECJ cases of Wolf (C-229/08) [para. 37] and Prigge (C-447/09) [para. 49] where the physical capabilities required to perform the job were related to age.
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