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By Jack Boyle, Blackadders Solicitor
You may recall the landmark decision in Seldon v Clarkson Wright and Jakes issued by the Supreme Court last year where it was decided that a law firm which required one of its partners to retire at age 65 had not acted unlawfully. For a summary of the decision see my colleague Sarah Winter's report:
Following the abolition of the default retirement age in April 2011, it remains possible for employers to insist on a fixed retirement age. However, to avoid age discrimination claims, employers would need to demonstrate that imposing a mandatory retirement age (which is form of direct age discrimination) is a "proportionate means of achieving a legitimate aim". Importantly, in the landmark case reported above, the Supreme Court decided that the law firm's objective of allowing promotion opportunities for younger solicitors by succession planning was legitimate. That case was remitted to an employment tribunal to determine whether insisting upon retirement at the age of 65 (as opposed to a different age) was a proportionate means of achieving the legitimate aim of succession planning within the workforce.
This area of law looks set to be further tested by employment tribunals south of the border. Five police forces have been served with employment tribunal claims from over 250 former officers who were forced to retire under "Regulation A19". Regulation A19 is no longer relied upon by police forces but previously it allowed officers who had served more than 30 years to be compulsorily retired. Police forces used Regulation A19 as a means of removing officers due to funding cuts (crown servants such as police officers cannot be made redundant).
As these cases progress it will be interesting to see what unfolds. It is not clear at this stage what the claims relate to. However, it is likely that the claims will involve some form of age discrimination angle (either direct or indirect age discrimination). It is also likely that further legal arguments will be heard on the employers' justification defence. The forces in question are set to oppose the claims vigorously.
In the earlier Supreme Court case it was decided that the justification defence is different depending on whether the allegation relates to direct discrimination or indirect discrimination. In direct discrimination cases, justification must relate to employment policy and labour market whereas matters particular to an employer's own situation (such as funding cuts) are generally not legitimate. Justification in indirect discrimination claims focuses more on whether the employer can justify their own practices which means that funding cuts may be more relevant than in direct discrimination claims.