Comment
Age discrimination cases are at last starting to come through the Tribunals, after a slow start when the legislation first came into force in October 2006. Of recent decisions, two of particular interest are highlighted in this update.
Both decisions deal with the issue of objective justification, considering whether a requirement to retire at age 65 for non-employees (who are not subject to the default retirement age of 65) can be objectively justified. In one case, the requirement was found to be justified, while in the other it was not.
The decisions provide a useful insight into how a tribunal might be expected to approach the issue of objective justification. Whilst they will not bind other tribunals, they do demonstrate that objective justification is likely to turn on the facts of each particular case. In particular, they confirm the need to be able to produce evidence to support an argument that a provision or practice is objectively justified.
These decisions will also be of interest to employers who are concerned about the potential impact of the Heyday challenge on the ability to operate a compulsory employment retirement age of 65 for their employees. This is primarily an employment rather than a pensions related issue, but if you would like further advice around compulsory retirement ages, please contact our age discrimination specialist, Anne-Marie Boyle, partner in the Employment Department.
Mr Leslie Seldon v Clarkson, Wright & Jakes (ET)
This case concerned the compulsory retirement of the senior partner in a law firm at age 65. As this partner was not an employee, it was accepted that compulsory retirement at 65 would be direct age discrimination, and would need to be objectively justified. The remaining partners relied on various aims to show objective justification, including:
- ensuring that associates are given the opportunity of partnership after a reasonable period,
- ensuring a turnover of partners,
- facilitating planning of the partnership so that there are realistic expectations about when vacancies will arise and
- limiting the need to expel partners by way of performance management thus contributing to the congenial and supportive culture in the firm.
The Tribunal found that all of the above were legitimate aims of the partnership, and that overall, the expulsion of Mr Seldon was justified. It emphasised that each decision on objective justification will be specific to the facts, and each case would need to be judged on its own circumstances. An example of this is the fact that this partnership had no history of using performance management as a way of expelling partners. The Tribunal noted that, in a partnership where this was an accepted practice, the legitimate aim of limiting the need to use performance management on partners would be unlikely to stand up.
Hampton v Lord Chancellor And Ministry Of Justice (ET)
This case concerned a part time recorder. Recorders are office-holders, and not employees and so, again, the default retirement age of 65 does not apply to them. When the Age Regulations came into force, officials at the Ministry of Justice (the "Ministry") recommended to the Lord Chancellor that the retirement age for recorders should be increased to 70, in line with other judicial office holders, but Lord Falconer insisted on retaining a retirement age of 65, arguing that to increase the retirement age to 70 would reduce the pool from which full-time judges are selected, so reducing quality and diversity. Service as a recorder is generally regarded as a pre-requisite for appointment to a salaried position on the Circuit or High Court bench.
Mr Hampton, a part-time recorder, was retired when he
reached age 65, and brought a claim for age
discrimination. The Ministry conceded that he had been
subjected to less favourable treatment on the grounds of his
age, and therefore the sole issue was whether the policy of
retiring all recorders at 65 could be objectively
justified.
The Tribunal found that the Ministry's aim of
maintaining a reasonable flow of new appointments and a
reasonable flow of candidates for posts in the full time
judiciary was a legitimate aim. It then went onto
consider whether compulsory retirement at 65 was a
proportionate means of achieving that legitimate aim.
The Ministry argued that the retention of recorders between the ages of 65 and 70, who would not be in the pool for appointment to full-time judicial office, prevents the recruitment of younger recorders, who would be in the pool for appointment. It also argued that the presence of recorders over age 65 would reduce the availability of more challenging cases – and thus the necessary experience – to those in the pool for appointment.
The Tribunal rejected these arguments. It found that there was no evidence to support the assumption that all recorders aged over 65 would remain in post until 70. It did not consider that the reduction in the number of younger recorders which would result from increasing the retirement age to 70 would have any effect on the ability to produce suitable candidates for the judiciary. It also thought that a reduction in the number of vacancies would intensify competition and lead to an increase in quality of those appointed. Further, it held that steps could be taken to ensure that recorders who had the potential to be promoted to a judicial post were allocated the right type of case to gain appropriate experience.
For these reasons, the tribunal did not accept that the policy of retiring recorders at 65 was a proportionate means of achieving the legitimate aim of ensuring a reasonable flow of new appointments into the judiciary, and accordingly, the Ministry's retirement policy could not be objectively justified.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
