Media Briefing Note: Supreme Court Rules on Two Landmark Age Discrimination Cases

LONDON, 25 April 2012 - The Supreme Court has unanimously dismissed an appeal by a solicitor who claimed discrimination after he was told to retire just after his 65th birthday.

Leslie Seldon, a former civil litigation equity partner at Clarkson Wright & Jakes (CWJ), argued at a 2008 employment tribunal, a 2009 employment appeal tribunal and the Court of Appeal in 2010 that the decision to force him to retire was direct age discrimination. The default retirement age (now abolished) applied to employees only, and not to equity partners who are effectively self-employed.

Lady Hale ruled the partnership contract that mandated retirement at 65 was based on a legitimate aim in this case. The Supreme Court has referred the case back to the Employment Tribunal to consider whether forcing partners to leave after their 65th birthday was proportionate.

Chris Wellham, of Counsel in Hogan Lovells' employment team said:

"Employers will welcome clarification that there are a range of aims which can be used to justify a mandatory retirement age. This could include creating job opportunities for younger employees. It's unfortunate that the decision contains relatively little guidance on what an appropriate retirement age will be and it's clear that every case will have to be considered on its own facts."

Meanwhile, the court also delivered its verdict in a separate age discrimination case, Homer v Chief Constable of West Yorkshire Police.

Homer worked as a legal adviser with the police national legal database, having had 30 years’ experience as a police officer. He applied for access to a higher pay grade at the age of 61 but his employer turned down the application on the ground that he did not meet its “essential” requirement that he hold a law degree or similar qualification.

As he did not have enough time to complete a law degree before retirement Homer argued that he was being discriminated against.

The Supreme Court unanimously allowed Homer’s appeal, finding that the requirement to hold a law degree could amount to indirect discrimination against him because he would not have time to obtain a degree before his retirement date. The court referred the case to the Employment Tribunal to reconsider the issue of justification.

Wellham commented: "There is a big question mark in the case about whether it was proportionate to require existing staff to have a law degree in order to get the benefit of the top salary band.  The employer should have thought about whether there was a less discriminatory way of achieving its objectives of recruiting and retaining staff – such as making an exception to the policy for existing experienced staff. However, employers may feel they are between a rock and a hard place because making an exception for experienced employees (who are likely to be older) could give rise to discrimination claims from younger workers." 


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