[Thanks to Claire McCann of Cloisters Chambers for preparing this case summary]
The Supreme Court has held in Seldon v Clarkson Wright and Jakes (a Partnership) that the test for justifying direct age discrimination is different and narrower than the general test for justifying indirect discrimination.
The case concerned a partner from the Respondent firm of solicitors who was forced to retire when he turned 65. The Supreme Court held that the compulsory retirement age contained in the firm's deed of partnership was a directly discriminatory measure but that it was capable of justification as it was founded on legitimate social policy aims - summed up as 'inter-generational fairness' and 'dignity'. However, the case was remitted back to the employment tribunal for consideration of whether the selection of the specific age of 65 was a proportionate means of achieving those aims in the circumstances of the particular business.
The test for justifying direct age discrimination, as now clarified, is that employers must show:
- They have an aim;
- That aim is potentially legitimate in that it is capable of being a 'public interest' aim as specified in the Framework Directive (2000/78/EC) [59]. Those 'public interest' aims are distinguishable from purely individual aims particular to the business, such as cost reduction or improving competitiveness;
- The aim is also legitimate in the particular circumstances of the case [58] & [61]. A potentially legitimate aim within the Directive may not be so for the particular business concerned. This is explained by the examples given in [61]: so, avoiding the need for performance management is an aim directly connected with the 'public interest' aim relating to 'dignity' but if, in fact, the business already has sophisticated performance management procedures in place, it may not be legitimate to disapply them for one section of the workforce. This requires particular scrutiny of the aim in the context of the individual business to see if it is legitimate for that employment;
The means chosen to achieve the aim must be both appropriate and necessary. In Homer v Chief Constable of West Yorkshire Police, the SC emphasises that proportionality must be approached by considering both these aspects separately. This will involve considering whether there are other, less discriminatory, measures which would achieve the aim. This test represents a narrowing of the circumstances in which an employer can justify direct discrimination.
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