Employment law: Supreme Court rulings leave grey area on age discrimination

Employment law: Supreme Court rulings leave grey area on age discrimination

Two recent rulings by the UK’s highest court have left employers wondering where they stand on age discrimination and contractual terms.

The first of the two cases concerned a solicitor, Leslie Seldon. Mr Seldon was a partner in a small local firm. He sued his employer under age-discrimination legislation after they enforced a clause in the partnership agreement which stated that he must give up his position after the passing of his 65th birthday.

The second case heard by the Supreme Court concerned Terence Horner. Mr Horner is a former police officer, working as a legal adviser to the Police National Legal Database.

Mr Horner challenged a new rule which stated that only those with law degrees were entitled to achieve the top employment grade. Mr Horner argued that this was discriminatory as he was 62 and therefore had no time to obtain the necessary degree before retiring on his 65th birthday.

Europe has only recently enacted laws preventing discrimination on the basis of age. In argument, one of the lawyers in the Seldon case stated: “Age is not ‘binary’ in nature (man or woman, black or white, gay or straight) but a continuum which changes over time.”

The Supreme Court accepted the arguments of the law firm in Mr Seldon’s case. They claimed that the policy of forced retirement at 65 was designed to avoid unpleasant discussions about retirement, and to promote opportunity for younger lawyers coming through the ranks.

Backing the firm, the Supreme Court said that European law supported both these exceptions; that discrimination of the grounds of age could be made to support “intergenerational fairness” and also to protect the “dignity of older workers”.

However, whilst supporting the right for a firm to enforce a retirement age, they refused to support the specific retirement age in this case, and have sent the case back to the employment tribunal to determine whether the age of 65 was appropriate on the facts.

In the Horner case, the court ruled that the requirement for a law degree was indirectly discriminatory but that this could be justifiable. Indirect discrimination offers employers wider latitude for justification. As a result this case was also sent back to the Employment Tribunal with a strong suggestion that the two sides reach a compromise.

Both judgments have been welcomed by employers’ groups; however, many feel they have left big question marks over what is and is not acceptable. It would seem that further case law is required to clarify the situation.

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