The Employment Equality (Age) Regulations 2006 which came into force on 1 October 2006 made direct and indirect discrimination on the grounds of age unlawful unless objectively justified.  

In 2011 the default retirement age (DRA) and procedure to retire employees who reached the age of 65 was abolished by the government.

Furthermore, on 10 October 2010 the Equality Act 2010 came into force protecting workers against direct age discrimination, indirect age discrimination and age harassment in the workplace.

How can employers objectively justify making age based decisions?

Age discrimination can only be justified if it pursues a legitimate aim and is a proportionate means of achieving that aim.  

Seldon v Clarkson Wright and Jakes (2012)

This case has attracted a substantial amount of media attention, as Mr Seldon (a partner in a law firm) was forced to retire by his employers in 2006 when he was 65 and issued employment tribunal proceedings as a consequence. The ‘legitimate aims’ arguments put forward by the company have been scrutinised by the employment tribunal, employment appeal tribunal, Court of Appeal and most recently the Supreme Court.

The following aims were held as potentially legitimate:

  • Promoting access to employment for younger people;
  • The efficient planning of the departure and recruitment of staff; and
  • Avoiding the need to dismiss employees on the ground that they are no longer capable of doing the job which may be humiliating for the employee concerned, and avoiding disputes about the employee’s fitness for work over a certain age.

The case has been remitted to the employment tribunal in order for it to determine whether the above aims are proportionate. Therefore it is likely that this will not be the end of the Seldon case.

However, employers must be aware that they cannot simply rely on the above aims and claim the justification defence under the Equality Act 2010. As Lady Hale stated in the Supreme Court “all businesses will now have to give careful consideration to what, if any, mandatory rules can be justified”. It is therefore important for employers to ensure that (amongst other things) there are well-developed performance management systems in place for employers to assess workers of any age to ascertain whether there has been a decline in performance.  

It is crucial for employers to take legal advice when considering a worker / employee’s dismissal because of that person’s age. Discrimination claims not only attract adverse media attention and associated reputational damage, compensation awarded to a successful claimant is potentially unlimited.

About the author

Suki Harrar Partner

Suki is a lawyer and advises on all employment issues, including unfair dismissal, redundancy, TUPE, appointments of senior executives and contract documentation.