- 'Inter-generation fairness' or 'dignity' may justify fixed retirement age (News, 25 April 2012)
Where an employer seeks to justify a rule it has imposed which directly discriminates on grounds of age, (1) it must demonstrate that it maintained the rule to achieve legitimate aims which are of a public interest nature, and are consistent with the social policy aims of the relevant EU member state, (2) any aim identified must be the employer's actual aim in maintaining the rule, but need not be the reason the rule was introduced originally, or even have been in the employer's mind when the rule was introduced, (3) the aims of 'inter-generational fairness' and 'dignity' are potentially legitimate, (4) the employer must, however, show that any aim identified was legitimate in the particular circumstances of the employment concerned, (5) where an aim is found to be legitimate, the means chosen have to be both appropriate and necessary to achieve it, and hence those means (in this case, the rule imposed) have to be carefully scrutinised in the context of the particular business concerned in order to see whether they do achieve the aim and there are not other, less discriminatory, measures which would do so, and (6) where a rule is found to be a proportionate means of achieving a particular legitimate aim, the actual treatment of an individual which results from its application will usually also be justified. In a case where the rule in question is a mandatory retirement clause in the partnership deed of a firm of solicitors, forcing retirement at age 65, (a) the following are all legitimate aims: (i) ensuring that associates are given the opportunity of partnership after a reasonable period, to ensure they do not leave the firm, (ii) facilitating partnership and workforce planning by providing a realistic long term expectation as to when vacancies will arise, and (iii) limiting the need to expel partners by way of performance management, thus contributing to a congenial and supportive culture in the firm, but (b) it is not necessarily the case that the retirement clause in question is a proportionate means of achieving any one or more of those aims, and the resolution of that latter issue will depend in part on whether the selected retirement age (in this case of 65) is appropriate to achieve them, according to the Supreme Court in Seldon v Clarkson Wright and Jakes.
Sign in or take a trial to read the full analysis.
To continue reading this news article, as well as thousands of others like it, sign in to LexisPSL or register for a free trial