But, the Supreme Court has sent the case back to the Employment Tribunal in order for the Tribunal to determine whether or not the age of 65 is the appropriate age for retirement i.e.: can the law firm, Clarkson Wright and Jakes, provide satisfactory evidence that 65 is the right retirement age required to achieve the “legitimate aims” that it put forward to justify the retirement age of 65?
Not an employer’s charter
The Supreme Court’s decision should not be taken as carte blanche for employers to have a compulsory retirement age of 65 (or any other age). Indeed, any business that has a compulsory retirement age would be well advised to give very careful consideration as to:
(i) what are the business reasons underpinning the age decided upon;
(ii) what evidence is there that objectively supports those reasons; and (in the light of the Seldon case)
(iii) how can the business show that 65 (or the compulsory retirement age decided on) is the right age i.e.: that the choice of the mandatory retirement age is a proportionate means of achieving those legitimate aims, rather than, say, 70 or some other age.
It may well be the case that, in being able to objectively evidence a decision, a business is put to very considerable expense in relation to collating the statistical data required to support its case; this alone may be a disincentive to having a compulsory retirement age.
Devil in the detail
Certainly, the devil is in the detail of the Supreme Court’s decision. The Supreme Court , after an analysis of the relevant cases out of Europe, concludes that the Government has legitimately given UK employers and partnerships “the flexibility to choose which objectives to pursue, provided always that (i) these objectives can count as legitimate objectives of a public interest nature (emphasis added) ….and (ii) are consistent with the social policy aims of the state and (iii) the means used are proportionate, that is both appropriate to the aim and (reasonably) necessary to achieve it” (emphasis added).
Simply having legitimate aims is not enough
The Supreme Court goes on to make it expressly clear that, just because an aim (for example in the Seldon case, the aims of: career progression, workforce planning and being able to predict when vacancies would arise and collegiality in avoiding potentially unpleasant performance related expulsions from the partnership) is capable of being a “legitimate aim”, this is “only the beginning of the story”; any Court or Tribunal will have to go on and make a careful enquiry as to whether or not that stated aim is, in truth, the aim that is being pursued
Ex post facto rationalisation of the aim is lawful
An important point came out in the Seldon litigation, namely that at the time Mr Seldon was compulsory retired the firm had not identified the aims that it subsequently relied upon in defending the claim. The Supreme Court concluded that it is not necessary for the stated aims relied upon to defend a claim of direct or indirect age discrimination to have been in the minds of those adopting the measure in the first place.
Once the aim is identified it must be shown to be “legitimate”
The Supreme Court makes it clear that once the aim is identified, there still has to be evidence to show that it is legitimate.
The Court gave examples:
(i) improving the recruitment of young people and so having a balanced and diverse workforce is in principle a legitimate aim, but if, in reality (demonstrated by recruitment statistics) there is no problem in recruiting young people, rather in retaining older workers, then this cannot be a legitimate aim for the particular business; and
(ii) avoiding the need for performance management may be legitimate, but if sophisticated performance management measures are embedded in the business, it may not be legitimate for the business to avoid them in relation to only one class of the workforce (those who have attained the compulsory retirement age).
Sting in the tail
Employers choosing to have a compulsory retirement age could be in for a shock once the tribunal hear the case as to whether or not 65 was a proportionate means of achieving each of the stated objectives of Mr Seldon’s former firm. The statistical analysis needed to show that 65 was more proportionate than say 66, 70 or 75 may be very onerous – the need to show, for example, that at age 65 a partner’s performance decreased such that he/she was likely to fall below the standards required of partners in the firm, may be hard to prove at a general level (evidence that individual’s mental faculties decrease once over 65 making the pursuit of law harder), let alone amongst those who have served as partners in the firm.
In relation to retirement policies, employers need to speak to their lawyers, whatever their age!