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Age Discrimination - justification of compulsory retirement at 65

Two Employment Tribunals have handed down judgments reaching different conclusions on whether compulsory retirement at 65 amounts to discrimination on grounds of age.

There is an exception to unlawful discrimination in the Employment Equality (Age) Regulations 2006 for retirement at 65 or over but this applies only to ‘employees’ and not to partners or office-holders. Their retirement at a particular age must therefore be objectively justified in order to provide a defence to a finding of direct discrimination. Compulsory expulsion from partnership at the age of 65 was found to amount to less favourable treatment but could be justified, whereas the forced retirement of a part-time judge at 65 could not. The cases are very fact specific, but give some guidance to organisations who retain categories of individuals to whom the default retirement age of 65 does not apply, and to employers who are seeking to objectively justify a retirement age below 65.

In both Seldon v Clarkson, Wright and Jakes and Hampton v (1) The Lord Chancellor and (2) the Ministry of Justice, its was conceded that there was less favourable treatment on grounds of age, and so the cases hinged on whether this treatment could be objectively justified by showing that it was a proportionate means of achieving a legitimate aim. For further details of the arguments advanced by the parties and the reasoning of the tribunals click here.

These are only Employment Tribunal cases and so do not set a legal precedent. It is possible that they may be appealed. Moreover, the Tribunal in Seldon stated that "Any determination by the Tribunal in relation to objective justification does not lay down a general rule in relation to partnerships as different considerations apply in every case." They do however highlight the importance of the justification defence in age discrimination claims, and that Tribunals will not be afraid to scrutinise the justifications advanced. Employers and organisations must tailor such defences to their own organisations rather than relying on ‘stock’ lists of legitimate aims and show the means used to achieve them are reasonably necessary. Employers should consider whether they would be able to objectively justify any potentially discriminatory policies prior to introducing them.

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