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Age Discrimination - Setting the record straight?

Since the abolition of the UK’s default retirement age in 2011, there has been some ambiguity about when retirement should take place, and whether employers could enforce it. Now, after a landmark legal case in the Supreme Court, the matter may not exactly be resolved, but it is certainly a little clearer.

Scrapping of the default retirement age

In October of last year, campaigners against age discrimination celebrated when the long-established default retirement age (DRA) of 65 was scrapped. Prior to this an employer was within their legal rights to force an employee to retire once they reached 65. This change was in part a recognition of the fact that people today are remaining healthier and active for longer, and partly because the DRA was increasingly seen as a form of age discrimination.

The move was celebrated by age-related charities, but bemoaned by some business organisations. John Walker of the Federation of Small Businesses (FSB) said at the time that it would, “add to the fears of more employment tribunals if an employer does need to dismiss an underperforming member of staff.” He added that: “The FSB believes that the default retirement age should be raised in line with increases to the state pension age to take into account an aging population.”

Others voiced concern that older workers staying in their jobs for longer would lead to young jobseekers being unable to get the work or training they need.

Intergenerational fairness and mandatory retirement

However, matters concerning the scrapping of the DRA are not as clear-cut as they may first seem. At the end of last month, the Supreme Court ruled on an appeal by solicitor Leslie Seldon, who had been told to retire by the law firm at which he was a partner, after turning 65. It ruled that Clarkson Wright and Jakes were within their rights to force retirement in this case, because the firm’s retirement policy was based on, “intergenerational fairness,” and upholding the “dignity” of older workers.

On the first point, the employer had argued that their retirement policy ensured that younger workers had the chance to become partners at the firm within a reasonable period. On the second they said that having a set retirement age avoided the need for them to have difficult discussions with older workers about whether they were still fit for the job.

The Supreme Court ruled that in this case a ‘public interest’ had been served by telling workers to retire at a certain age. It added that: “All businesses will now have to give careful consideration to what, if any, mandatory retirement rules can be justified in their particular business.”

Continued ambiguity

In effect, this ruling makes it clear that in certain cases a mandatory retirement age is legally acceptable, if it can be proved that it serves a legitimate purpose such as protecting the rights of younger workers. However, until further such cases pass through the courts, it may be very difficult for employers to judge whether their retirement policy serves such a purpose.

Furthermore, the Supreme Court did not rule on what a suitable age for retirement should be, instead sending the case back to an employment tribunal. So, for the time being, the ambiguity continues.

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