25 Apr, 2012

Supreme Court rulings on age discrimination make the law clearer for everyone, says Commission


  • Homer v West Yorkshire Police
  • Seldon v Clarkson, Wright and Jakes


The Equality and Human Rights Commission believes the first judgements handed down by the Supreme Court on age discrimination will remind all employers of their responsibilities and help make the law clearer. 


Age discrimination is unlawful in the workplace, but the law allows exceptions to that general rule only if it can be justified. The justification is if it is a “proportionate means of achieving a legitimate aim”. This test can be confusing for employers and employees.


The Supreme Court judgments say it is much harder to justify direct age discrimination such as mandatory retirement age (Seldon) than indirect age discrimination (Homer).  The test for justifying age-based treatment is different for direct and indirect discrimination.


In Mr Homer’s case the Supreme Court has asked the tribunal to re-consider the justifications given by West Yorkshire Police for introducing a requirement to have a law degree for senior posts. The judges indicated that the tribunal might have upheld his claim of indirect age discrimination had it asked the right questions about whether that policy was justifiable.


The Supreme Court decided that Mr Seldon’s firm did have some valid reasons for having a mandatory retirement age for partners. However, it has asked the tribunal to consider if forcing partners to leave after their 65th birthday (rather than at a different age) was appropriate and necessary.  The judgment raises questions that any business will find helpful in considering mandatory retirement age.


In making the ruling on Seldon, the Supreme Court gave some helpful guidelines on when direct age discrimination may be justified. These are:


  • Two types of aims had succeeded in the courts, those based on intergenerational fairness or dignity. Examples include:


®  Promoting access to employment for younger people

®  Facilitating the participation of older workers in the workforce

®  The efficient planning for the departure and recruitment of staff

®  Avoiding disputes about the employee’s fitness for work over a certain age


  • Once an aim has been identified, “it has still to be asked whether it is legitimate in the particular circumstances of the employment concerned”.


  • The means used to achieve an aim must be proportionate to the aim and (reasonably) necessary to achieve it.


John Wadham, General Counsel, Equality and Human Rights Commission said: “The judgments remind employers that a worker’s age is not shorthand for their competence and should never be used in that way.  An employee’s ability to do a job should not be based on out of date assumptions about what people can do as they get older.  


“Every employer must think carefully about whether it really needs to have a policy that directly or indirectly discriminates against people based on their age. The court has made it clear that such policies must be justified on a case by case basis. An employer or partnership must be sure that the same aim couldn’t be achieved using a less discriminatory approach.”


Picture: UK Supreme Court

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