Age Discrimination in the UK
The law protects employees from discrimination based on their age in a number of ways. Age discrimination, also known as compulsory or justified retirement age, is one such practice. It can occur when an employer does not respect an employee’s age, whether it’s directly or indirectly.
Justified retirement age
The government has abolished the national default retirement age of 65 and has left employers with the option to set their own “employer justified retirement age”. Under current law, a retirement age must be objectively justified and meet the employer’s legitimate objectives. Although it is technically possible for employers to set their own retirement age, there are also significant risks associated with it.
The Employment Appeal Tribunal has recently heard two cases regarding the employer justified retirement age (EJRA) at Oxford University. Both of these cases related to an employer-sponsored scheme for senior staff. The aim of the policy was to attract younger and more diverse staff. Initially, the threshold for senior staff was 67, but this was increased to 68 in 2017.
Employer justified retirement age in the UK differs from the default retirement age, and requires an employer to follow fair procedures when making such a decision. In addition, Acas guidelines recommend that employers consider the requests of employees who wish to remain in their current position, and that they must ensure that they treat all employees equally.
The Supreme Court has also ruled that employers can set their own mandatory retirement age for their employees, provided that they are able to justify this decision in light of their circumstances. However, it is worth noting that forcing staff to retire at an age that is older than they want to is direct age discrimination.
Compulsory retirement age
Compulsory retirement age for employers is an issue that may affect many employees. It could be considered a form of discrimination, and can result in compensation for victims. The law requires employers to justify their choice of compulsory retirement age by demonstrating that the policy achieves a legitimate aim and is not less discriminatory than other options.
However, there are some occupations where mandatory retirement may not be possible. Some roles require certain physical abilities, such as firefighters. There is also a mandatory retirement age for construction workers. In these instances, employers must give employees enough notice to find another job or to continue working, or they may be forced to retire early.
Acas guidance advises employers to allow employees to work beyond the compulsory retirement age if the circumstances warrant it. However, it stresses that employers must be careful when allowing such requests, as a consistent pattern of work beyond the compulsory retirement age may raise questions about whether the law is necessary.
Compulsory retirement age for employers is a controversial topic, and it has also led to many legal challenges. In one case, a UK government conceded that age should be protected under the ECHR, but in another, an employer was found to be violating section 9 of the ECHR.
While compulsory retirement age is illegal in the UK, it is still common in many countries. In the past, the age of compulsory retirement for employees in the UK was 65. However, the legislation has changed in recent years.
Indirect age discrimination
Age discrimination can be unlawful when the employee’s age is a determining factor in a decision. However, employers can avoid a tribunal by offering exit packages or settlements. Indirect age discrimination is when employers make rules that are not age specific, but disadvantage older workers. For example, if an employer only offers training for employees within three years of graduating, it is likely to discriminate against older employees.
If the employer is aiming to justify age discrimination, it must show objective justification for the practice. If an employer is attempting to justify a retirement age above the age of an employee, they must provide evidence of a comparator of the same age. However, if an employee has no comparator in that age group, a hypothetical employee may be used as an example.
Indirect age discrimination in the UK: Age discrimination is unlawful when the employer imposes a retirement age above the normal retirement age. However, this is not always the case. Some employers may decide to retire their workers early based on seniority. If this occurs, an employer may be liable for a breach of contract or breach of the anti-harassment provisions in the employment contract.
Indirect age discrimination in the UK: An employer’s decision to restrict the age of its employees can be deemed unlawful if it is not objectively justified. This includes asking an employee to retire at a certain age as part of succession planning. However, employers can’t justify age discrimination by saying it’s necessary for the business to survive and succeed.
The Supreme Court’s decision in Seldon v Clarkson Wright and Jakes (A Partnership) shows that an employer can introduce a new retirement age if the age of the old employee is justified. The Supreme Court said that a mandatory retirement age of 65 was proportionate and not discriminatory. However, a firm’s decision to set its own retirement age is a significant risk.
Legitimate aims
When it comes to compulsory retirement age, employers must make sure it is proportionate to their legitimate aims. They can also set an age restriction for certain employees, such as the requirement for onsite workers to have a certain physical fitness level. There are two types of age restrictions that may be justified in this way: age restrictions on the job and age restrictions on employers. The age restriction on the job must be proportional to the legitimate aim of the employer and there must be no reasonable alternative. For example, a construction firm may set a maximum retirement age for all onsite workers.
An employer must justify compulsory retirement age by demonstrating a legitimate aim, which is usually intergenerational fairness. This aim may include the retention of young staff or providing them with sufficient opportunities for promotion. It must be proportionate, meaning it must strike a balance between the need to achieve the aim and its discriminatory effect. Two recent United Kingdom decisions have emphasized the importance of assessing the proportionality of an employer’s retirement age.
The second way to justify a compulsory retirement age is by showing how the age restriction benefits a diverse workforce. This is not a simple feat. While a mandatory retirement age can increase the diversity of staff, it can also increase the number of vacancies in the workplace. As the Employment Appeal Tribunal recently confirmed, compulsory retirement age policies should be proportionate.
In the University of Edinburgh, the compulsory retirement age is designed to support three key aims. The University argued that the retirement age was necessary to achieve these aims, as it meant that fewer employees were left in the workforce, which would result in more vacancies. The Tribunal found that the age was proportionate and that it was the right decision after considering the impact on the staff.
Justification
Until the introduction of age discrimination laws in 2011, employers were able to impose a mandatory retirement age, as long as it was a proportionate means to a legitimate aim. However, the Supreme Court has ruled that a compulsory retirement age is discriminatory and requires the employer to justify it. The age restriction must also be consistent with state social policy.
There are numerous ways to justify an age restriction, including identifying an objectively valid reason for the measure. One example is an employer’s need to ensure a high level of staff retention, facilitate workforce planning, avoid underperformance or incapacity processes, and increase employee loyalty. These objectives are not necessarily stated in the employment contract at the time of the discrimination; they must be genuine and can only be rationalised after the fact.
The Equality Act 2010 makes direct age discrimination against older employees unlawful, although the Act does not prohibit indirect age discrimination. However, indirect age discrimination must be justified by a more expansive range of legitimate employer aims. One of these objectives is to reduce costs for the employer.
Indirect age discrimination: The employer has failed to address genuine performance concerns of a younger employee, leading him to claim age discrimination. This is especially true of age discrimination against self-employed people. It is also illegal to make discriminatory decisions based on an employee’s age, including a requirement that a person have a law degree in order to qualify for a position.
Age discrimination in the UK can be a real problem when a mandatory retirement age is introduced by an employer. The employer has to justify its decision objectively to avoid going to tribunal. However, proving this can be tricky. As a result, many employers will settle or offer exit packages to prevent a tribunal hearing.
References
Pitcher v (1) The Chancellor, Masters and Scholars of the University of Oxford (2) The President and Scholars of the College of St John the Baptist in the University of Oxford EA-2019-000638-RN
Ewart v The Chancellor, Masters and Scholars of the University of Oxford EA-2020-000128-RN
Seldon v Clarkson Wright and Jakes (A Partnership)
