Wednesday, 25 Apr 2012
What’s age got to do with it?
Since 1 October 2011 the default retirement age (DRA) has been abolished in the UK. Previously, employers could rely on the DRA to compulsorily retire workers once they reached the age of 65, which many argued was a form of discrimination. Now workers are free to work for as long as they wish and employers must follow a fair dismissal procedure in order to retire older workers, relying on one of the fair reasons for dismissal set out in section 98 of the Employment Rights Act 1996 (which are the rules which relate to any kind of dismissal).
However, employers may continue to prescribe a compulsory retirement age provided that they can objectively justify it as a “proportionate means of achieving a legitimate aim”. Workers can no longer to be forced to retire on the grounds of age alone.
The Supreme Court has today handed down its long awaited judgement in the case of Seldon v Clarkson Wright and Jakes concerning a solicitor who was told to retire just after his 65th birthday. The employer had argued that the legitimate aims for its retirement policy were succession planning and preserving the dignity of older workers by retiring them.
The unanimous dismissal of the retired solicitor’s appeal signalled that fairness between generations was a legitimate aim for employers. However, it referred the case back to the employment tribunal to rule on whether 65 was an appropriate age for Mr Seldon to be told to go.
This judgement does not change the fact that employers cannot rely on generalised assumptions as sufficient evidence of justification. Employers will have to provide valid evidence if their retirement policies are challenged. We will have to wait a little longer to find out if the specific age of 65 was a proportionate means of achieving the employer’s aims in the Seldon case. However, this new case serves as a useful reminder for employers to tread carefully when considering compulsory retirement.