Employment Expert Liesel Whitfield Considers The Implications of This Landmark Age Discrimination Case

The landmark age discrimination case involving Leslie Seldon, the solicitor who was forced to retire at the age of 65, was heard by the Supreme Court in January. Employment Associate, Liesel Whitfield, examines what the decision once handed down will mean for businesses.

It will be interesting to see what the Supreme Court decides now that they have heard the case of Leslie Seldon - the solicitor forced to retire at the age of 65.

This is certainly one of the most significant age discrimination cases to date, particularly as, when the judgment is handed down later this year, it will provide clear guidance in relation to private sector retirement policies now that the default age has been abolished.

Here the case focuses on whether the law firm’s decision to retire partners at 65 was lawful. They argue that by making partners leave the firm at 65, it facilitates the promotion of ambitious associates to partner and avoids the indignity of expelling partners through performance management.

Although these justifications based on dignity and intergenerational fairness had been endorsed by the European Court of Justice, the Government has since abolished the default retirement age (DRA).

If the Court of Appeal’s judgment is upheld, it will mean that a private employer could justify having its own DRA with confidence – assuming it had a legitimate aim and the particular age chosen was a proportionate means of achieving that aim. If however the decision goes in favour of Mr Seldon, companies would probably have to make their aims in relation to any retirement policy more specific and clarify them in advance.  This could make justifying a retirement age far more difficult.

One reason why it might still be relevant for employers to consider having their own DRA is the possibility of a rise in the number of age discrimination cases as employers begin to apply a rigorous performance management system to those to whom they did not do so before the abolition of the DRA.

Whilst the outcome of performance management is often to improve and retain employees, if the result is to dismiss someone who has reached what would have been the DRA before it was abolished, it might not be too difficult to raise the ‘inference of discrimination’.

It’s hard to predict at this stage how likely this will be, but I would expect an increase in cases for a short period, with an eventual reduction as performance management techniques have been applied for a time.

With this in mind, one would have to question whether it would be more reasonable and indeed dignified, to have a managed departure against a justifiable DRA or range of them.

For more information on the services provided by our Employment team please click here.