The UK Supreme Court has this week given its decisions in controversial age discrimination cases, Seldon v Clarkson Wright & Jakes (involving solicitor Mr Seldon being obliged to retire as a Partner in law firm CWJ at age 65) and Homer v West Yorkshire Police, relating to Mr Homer’s ineligibility for promotion because he could not obtain the law degree required by the job before he was due to retire.
Seldon confirmed that legitimate reasons for retaining a contractual retirement age can include staff retention, workforce planning and limiting the need to expel older staff by way of demeaning and undignified performance management processes. Much will depend on the particular facts of the case – improving the recruitment or retention of young people may be a legitimate aim, but discriminating against older staff will not be a proportionate means of achieving it if the business does not have a problem in recruiting or retaining the young in the first place, for example. The slightly trickier question of whether the employer’s actions in forcing Mr Seldon to retire when he turned 65, as opposed to some other age, were a proportionate means of achieving those aims has been referred back to the Employment Tribunal to consider. The circus rolls on or, to mix metaphors, Mr Seldon is down but not yet out.
However, although it is Seldon which has attracted all the headlines, the big legal news is actually in Homer, courtesy of Lady Justice Hale. First, she considered what seemed a reasonably compelling argument that Mr Homer was disadvantaged not by his age but by his proximity to retirement. Their Lordships felt that to distinguish closeness to retirement from age was artificial and illustrated this with what may be (to be honest, I haven’t spent a lot of time looking into this) the debut appearance in the Supreme Court of the “bearded lady comparator”. A job requiring the candidate to have a beard would be indirectly sex discriminatory, said Hale LJ, because “very few” women could grow one. “Very few”? A whole new range of painful legal in-jokes opens up before us. It would be impossible to separate rejection on no-beard grounds from gender, and the same was true of separating proximity to retirement from age.
Secondly, Lady Justice Hale made the point that employers are still finding their way in a new area (age discrimination and retirement) which “many still find counter-intuitive”. All well and good, but you know the age law is in a mess when even a senior Judge of the highest court in the land says of that law that “we all have a lot of learning to do”. Very commendable frankness, but not exactly reassuring for those pondering joining the bearded lady in the age litigation circus.