Justifying Direct Age Discrimination

The Supreme Court has handed down its decision on justification of direct age discrimination in Seldon v Clarkson Wright and Jakes [2012] UKSC 16.  It held that justification for direct age discrimination is narrower than for indirect age discrimination.  Direct age discrimination can only be justified by aims related to the public interest and social policy and not by individual aims related to the employer's business, such as cost reduction or improving competitiveness. 

A partner at the law firm, Clarkson Wright and Jakes, was retired under a compulsory retirement provision at the age of 65.  It was accepted that the provision was directly age discriminatory but the firm argued that it could be justified by showing that it was a proportionate means of achieving legitimate aims.  It cited three legitimate aims: (a) to give senior associates a reasonable opportunity of partnership; (b) to facilitate partnership and workforce planning; and (c) to create a congenial and supportive culture by limiting the need to expel partners through performance management processes.  The Supreme Court held that the aims related to social policy (specifically ‘inter-generational fairness' and ‘dignity') and were therefore legitimate aims.  

However, the question of whether the chosen age of 65 was a proportionate means by the firm of achieving those aims is still to be decided by the Employment Tribunal.  Until this is done, employers should take care over whether, and if so how, to retire employees.