Equality and Human Rights Commission (EHRC)
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Supreme Court rulings on age discrimination make the law clearer for everyone, says Commission

  • Homer v West Yorkshire Police
  • Seldon v Clarkson, Wright and Jakes

The Commission believes the first judgements handed down by the Supreme Court on age discrimination will remind all employers of their responsibilities and help make the law clearer.

Age discrimination is unlawful in the workplace, but the law allows exceptions to that general rule only if it can be justified. The justification is if it is a 'proportionate means of achieving a legitimate aim'. This test can be confusing for employers and employees.

The Supreme Court judgments say it is much harder to justify direct age discrimination such as mandatory retirement age (Seldon) than indirect age discrimination (Homer). The test for justifying age-based treatment is different for direct and indirect discrimination.

In Mr Homer's case the Supreme Court has asked the tribunal to re-consider the justifications given by West Yorkshire Police for introducing a requirement to have a law degree for senior posts. The judges indicated that the tribunal might have upheld his claim of indirect age discrimination had it asked the right questions about whether that policy was justifiable.

The Supreme Court decided that Mr Seldon's firm did have some valid reasons for having a mandatory retirement age for partners. However, it has asked the tribunal to consider if forcing partners to leave after their 65th birthday (rather than at a different age) was appropriate and necessary. The judgment raises questions that any business will find helpful in considering mandatory retirement age.

In making the ruling on Seldon, the Supreme Court gave some helpful guidelines on when direct age discrimination may be justified. These are:

  • Two types of aims had succeeded in the courts, those based on intergenerational fairness or dignity. Examples include:
    • Promoting access to employment for younger people
    • Facilitating the participation of older workers in the workforce
    • The efficient planning for the departure and recruitment of staff
    • Avoiding disputes about the employee's fitness for work over a certain age
  • Once an aim has been identified, it has still to be asked whether it is legitimate in the particular circumstances of the employment concerned.
  • The means used to achieve an aim must be proportionate to the aim and (reasonably) necessary to achieve it.

John Wadham, General Counsel, Equality and Human Rights Commission said:

'The judgments remind employers that a worker's age is not shorthand for their competence and should never be used in that way. An employee's ability to do a job should not be based on out of date assumptions about what people can do as they get older.'

'Every employer must think carefully about whether it really needs to have a policy that directly or indirectly discriminates against people based on their age. The court has made it clear that such policies must be justified on a case by case basis. An employer or partnership must be sure that the same aim couldn't be achieved using a less discriminatory approach.'

For more press information contact the Commission's media office on 020 3117 0255, out of hours 07767 272 818.

For general enquiries please contact the Commission's national helpline: England 0845 604 6610, Scotland 0845 604 5510 or Wales 0845 604 8810.

Notes to editors

The Commission is funding and running the direct discrimination case of Mr Seldon against Clarkson, Wright and Jakes where he was a senior partner. The law firm forced him to retire in 2006 because he turned 65. He is still practicing law at the age of 71, working as a notary.

The Commission intervened in the indirect discrimination case of Mr Homer against Yorkshire Police Constabulary where he was a senior legal advisor. He could not get the highest pay grade, after his employer's rules changed, because he did not have a law degree nor could he complete one before his retirement.

The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (SI 2011/1069) overturned the retirement age provisions. From October 2012 employers will not be able to use a blanket retirement age. However, an employer can still force an employee to retire if it can show that the policy is justifiable as a 'proportionate means of achieving a legitimate aim'. For this reason, the Supreme Court's clarification of this test has wide implications for all.

The Commission is a statutory body established under the Equality Act 2006, which took over the responsibilities of Commission for Racial Equality, Disability Rights Commission and Equal Opportunities Commission. It is the independent advocate for equality and human rights in Britain. It aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights. The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation, and encourages compliance with the Human Rights Act. It also gives advice and guidance to businesses, the voluntary and public sectors, and to individuals.

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