Two major decisions handed down last week by the UK Supreme Court have brought the issue of age discrimination back under the spotlight. Mandatory retirement age was abolished in the UK in 2011, although employers can still apply it if they can justify it on the grounds of proportionality in achieving a legitimate aim.
Both cases, Seldon v Clarkson Wright and Jakes and Homer v Chief Constable of West Yorkshire Police, dealt with employees being discriminated directly or indirectly in relation to their retirement age. The two situations were however rather different. In Seldon, the claimant was a solicitor required to leave the law firm Clarkson Wright & Jakes (CWJ) at the age of 65th according to the partnership agreement. This policy was justified on the basis of integrating younger people and giving partnership opportunities to young generations. In Homer, the claimant was a legal adviser with the police national legal database who alleged that he was subject to indirect age discrimination as he was ineligible for a promotion that required him to have a law degree. His argument was that, given he was aged 62; he could not obtain a law degree before the age of retirement (65) and thereby apply for the promotion.
Neither ruling determined the outcome in the specific cases, as both were sent back to the employment tribunals. However, Lady Hale delivered both principal judgments essentially concluding that both age discrimination claims had some merits but that specific circumstances had to be considered. Lady Hale concluded, in Seldon, that to justify a policy it is not sufficient for an employer to show that it has an aim that is capable of being a public interest aim (such as the aim to integrate young people thereby dismissing older partners / employees) and that it must in addition be shown that it is actually a legitimate aim in the particular circumstances of the employment. In Homer, the claimant’s appeal was dismissed and it was held that the requirement of holding a law degree could be considered indirect discrimination but that this depended upon a valid justification on the side of the employers.
These cases highlight the basic fact that age is not a condition of an individual (such as disability) nor a permanent characteristic which is subdivided into generally speaking clear-cut ‘categories’ within society (gender, ethnicity or sexual orientation): age is rather a specific situation part of human life. There is no clear boundary between one phase of life or another. The ability to work in later years really depends on the individuals’ mental and physical health. However, businesses are likely to consider that at an older age, people might be less flexible and adaptable than younger people thereby slowing down their work activity or reducing innovation. This clearly is a delicate topic, as one can see both sides easily and must be careful to argue heavily either way given the implications on society as a whole. But what, in my opinion, is the strongest argument in favour of mandatory retirement age, would be the possibility of opening up the job market to young people. Just like dignity of old workers is considered and protected, the same should apply to young people who are either struggling to find employment or, once on the job, are not given enough chances to show what they are capable of.
Michael Skapinker argued in his article on the Financial Times (The Law is a Grey Area for Employers of the Aged, Thursday 3rd May 2012) that the Supreme Court rulings made the law even more woolly that it already is, thereby leaving uncertainty amongst employers as to what they are and what they are not entitled to do in relation to retirement ages. Michael Skapinker makes the fairly obvious but excellent point that “we all start off young and, with luck and good health, end up old. If the law acts to protect the elderly, we will all benefit one day.” Yet, however tempting it might be to agree with him, I must resist this point. Society will not benefit now or tomorrow if there is no generational interchange and if older employees have no “time limitations” than enable newer generations to step in. This clearly results in older generations holding the economic and labour power, whilst being forced to support younger generations unable to sustain themselves, to repay university debts and to start-up families. Whilst Mr. Homer (Homer v Chief Constable of West Yorkshire Police) might have felt that it was unfair to him to be ineligible for a position requiring a law degree, it would be equally if not more unfair to make a position for a law graduate impossible to reach because old staff – regardless of their qualifications – can have priority over them. I struggle to see how this will benefit the young a few years along the line.
The Supreme Court might be implicitly supporting this view as its rulings effectively mean that employers are entitled to require older staff to leave, provided this is justified on stronger grounds than mere cost cutting and improvement of competition. However, in considering two cases which effectively approach the issue of age discrimination from the one-sided perspective of the older staff, one should not forget, in the wake of the London riots, society’s interest in providing jobs – and dignity – to younger generations.