Can you be forced to retire?
As those of you who are approaching, or sometimes wish you were approaching, retirement age would know, the Default Retirement Age of 65 was abolished on April 2011. People will now inevitably ask the question; can employers retire people at all?
This hot topic is currently being considered by the Supreme Court in the case of Seldon v Clarkson Wright & Jakes, the first reported case concerning compulsory retirement from a partnership, in this instance a firm of solicitors.
In this case the claimant, Mr Seldon, was compulsory retired from the partnership when he reached the age of 65. He was a partner, not an employee so the default retirement age did not apply to him. An Employment Tribunal had previously ruled that compulsory retirement at 65 under the firm’s partnership deed was discriminatory on the grounds of age, however the retirement could be objectively justified.
The argument put forward by his employer was that the firm’s compulsory retirement age was a proportionate means of achieving the legitimate aim of workforce planning. It would provide younger members of the workforce with promotion opportunities. The employer also put forward a collegiality argument which was based on the fact that the compulsory retirement age maintained a congenial and supportive workplace culture.
The Court of Appeal upheld the Employment Tribunal’s decision.
Mr Seldon did not agree with this and appealed this matter to the Supreme Court. The Supreme Court heard the appeal on the 17 January 2012 and the judgement is expected to be handed down shortly. The decision of the Supreme Court is eagerly anticipated, not least by those who fear that they may be forced to retire by their employer’s attempt to ‘justify’ a compulsory retirement age.
While some of us would quite happily retire as soon as we are able, there are a significant amount of people who want to or need to continue to work and do not consider that age should be any barrier to them doing so, nor should a compulsory retirement age ever be justified. The decision of the Supreme Court will no doubt provoke a reaction, whichever way it is decided.
While consensual retirement may become the norm, if you work in what can be described as a ‘youthful’ industry, for example in the music industry, could retirement of employees at a certain age be justified? At present it would appear this is a real possibility, as Mr Seldon found to his detriment.
A need for younger staff in a ‘youthful’ industry is one justification that may be used by employers, along with other reasons such as promoting the recruitment and retention of young employees. This aim seems in itself tainted with discrimination.
What would the position be if an older employee was overlooked for promotion in favour of a younger worker? Many people would be outraged if they were overlooked for promotion just because of their age. If the Supreme Court agrees that compulsory retirement ages may be justified, an employee’s ability to challenge their retirement may be limited.
If a compulsory retirement age is justified, employers might also be able to justify not considering candidates for recruitment if they are approaching retirement age on the basis that it would not give the applicant sufficient time in the role for them to add much benefit to the organisation. This would likely be role-dependent however. If a role was not of a particularly specialised nature then this argument could be challenged by the unsuccessful applicant.
We hope the Supreme Court decision in Seldon will establish some vitally needed clarity on these extremely important issues.
Catherine Smith is a solicitor in the employment team at Russell Jones & Walker
See also:
Comments