Age discrimination has been around for a while, and so unfortunately has Mr Seldon's continuing claim against his former firm. However, the latest round in Court does give a bit more comfort for those who wish to retain a retirement age.
Mr Seldon, a solicitor, was retired by his firm at the end of 2006. A claim was brought by him in 2007, and has been before most Courts and Tribunals in its long history - we won't comment upon the irony of an age discrimination claim taking seven years to resolve!
So what does the latest development in the Seldon case tell us? In short, a retirement age set by the company will not be discriminatory simply because there could be slightly different retirement ages that may have a less discriminatory impact. Also, when looking at justifying retirement ages, factors such as the state pension age and if the employee and company had agreed the retirement age are relevant.
When considering whether or not to have a set retirement age, in our experience most employers are dropping these from their employment contracts. The reason – for a retirement age to be lawful the company must demonstrate that the 'retirement age' satisfies the test that it is (i) a proportionate means of (ii) achieving a legitimate aim. The mischief is not so much the legitimate aim – this can include a number of factors such as encouraging other employees to stay by being able to offer promotion – but rather the test that it has to be a proportionate means to achieve that aim. This involves balance the aim and the possible discrimination (in this case dismissing someone simply because they have reached a certain age).
So you need to ask yourself the question, can you as the employer achieve what you want to achieve in a different way, ie. by not having to ask someone to retire? If you want to promote a younger person and can't because the older person is holding that position, why can the older person not be offered a (lower) role to free up the more senior role?
The situation is a tricky one, and is very often answered these days by the removal of retirement ages altogether. However, if you do want to keep a retirement age, once you have satisfied yourself that it is a proportionate means to achieve your legitimate aim, then the latest decision in the Seldon case should help you out a bit more.
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