Unlike in other forms of direct discrimination, there is a defence of justification to direct age discrimination where the discrimination is capable of being objectively justified.
In Seldon –v- Clarkson Wright & Jakes, a series of hearings and appeals at various levels of the tribunals and courts over several years has concluded that:
- Age discrimination by way of mandatory retirement age is capable of objective justification
- Measures which seek to achieve inter-generational fairness or dignity at work may amount to legitimate aims
- Mandatory retirement at age 65 was, in this case, a proportionate means of achieving the legitimate aims of workforce planning and staff retention
The case involved the compulsory retirement of a partner in a law firm (not an employee). Factors which had a bearing on the decisions include:
- The statutory default retirement age of 65 was still in effect at the time
- All partners had consented to the firm’s retirement age when they signed the partnership deed
- The fact that a mandatory retirement age coincides with the state pension age is relevant
Disputes in similar cases may be decided differently moving forward, and it will be necessary to review new cases as they are decided in order to identify more defined patterns. Clearly, the question of whether an employer (or a partnership) may justify a mandatory retirement age will depend on the nature of its organisation, the age set and the developing age of entitlement to state pension.
However, employers must be encouraged by the Employment Appeal Tribunal’s latest decision that the firm’s aims of workforce planning and staff retention could only be achieved by way of mandatory retirement age and that a range of retirement ages might potentially be proportionate.
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