23 July 2012
In the Seldon case, Mr Seldon was forced to retire at age 65 as a partner in a law firm in line with the firm’s partnership agreement, to which he was a signatory. Mr Seldon claimed at an Employment Tribunal that this amounted to direct age discrimination. The Employment Tribunal disagreed, finding that the policy was justified as “a proportionate means of achieving legitimate aims” (allowable under the age discrimination legislation) relating to the promotional opportunities within the firm and labour turnover.
On appeal by Mr Seldon, the Employment Appeal Tribunal (EAT) held that, although the policy was capable of being justified under the age discrimination legislation, the tribunal had not considered whether or not these aims could have been achieved by a retirement age other than 65. The EAT sent the case back to the tribunal to consider this point, but Mr Seldon believed that the EAT should have overturned the tribunal decision in full and appealed to the Court of Appeal, which dismissed his appeal, as did the Supreme Court.
The Supreme Court also gave some guidance to employers who want to retain a set retirement age, including that, whilst an employer could claim that the aim of having a set retirement age is to encourage a more age-diverse workforce, the employer is likely to have to show that there is a problem with recruiting the young into its business and that this problem has been specifically caused by the lack of throughput of older workers.
In addition, the employer would have to show that the chosen compulsory retirement age was set at a level that was appropriate and necessary to achieve the aim in question. This is the only element of Mr Seldon’s case that is now outstanding and is still to be determined by the Employment Tribunal.
In the Homer case, Mr Homer’s promotion to a higher grade was blocked by a requirement to have a law degree or similar.
Mr Homer was age 62, a part-time degree course would take four years to complete, and his employer had a default retirement age of 65.He therefore complained that he was unable to obtain the degree required to achieve promotion before the time he was due to retire and claimed indirect age discrimination.
The Employment Tribunal upheld his claim, but the EAT found that there had been no indirect age discrimination. The Court of Appeal agreed, and the case went to the Supreme Court.
The Supreme Court held that the employer’s degree requirement for promotion was indirect age discrimination but, with a similar outcome to the Seldon case, sent the case back to the Employment Tribunal to determine whether or not the employer’s actions were justified as a proportionate means of achieving a legitimate aim.
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