Age discrimination is one of the fastest-growing categories of Employment Tribunal claim. In the last full year for which figures are available, there were 6800 claims, as against only 5200 the previous year and 3800 in 2008-9. The number of claims now easily beats that under, for instance, race discrimination.
These numbers are almost certainly set to rise as a result of a Supreme Court judgment about compulsory retirement this week.
When the government announced last year that compulsory retirement was to end, Philip Booth saw this as ‘another nail in the coffin of freedom of contract’. He was right to do this, as it was just one more way in which employers’ flexibility in the use of labour was to be diminished. While it is right, and probably necessary, for many of us to work longer, the government should not be laying down rules in this way. The difficulties of removing older workers who can no longer meet the requirements of a particular job are considerable, and if some employers choose - not all would do so - to set a retirement date, that ought to be their prerogative.
The Supreme Court has thrown all this up in the air again by ruling, in the case of Kent solicitor Leslie Seldon, that employers can still set a retirement date. Oddly, though, they declined to say whether the partnership involved, Clarkson, Wright and Jakes, had an appropriate retirement policy. They left this up to an employment tribunal to decide.
The Supreme Court judges, led by Lady Hale, argue that lawful reasons for compulsory retirement include opening up younger people’s prospects for advancement, planning the future of a business by arranging succession dates, and restricting the need for sacking older workers for incompetence. In general, businesses will have to be able to show a ‘public interest’ in their compulsory retirement policy.
This judgment, while welcome in some ways, is likely to open yet another can of worms. Employers may see this as a green light for reintroducing retirement dates. But anybody made to retire against their will in this way is bound to appeal by claiming that the ‘public interest’ does not apply in their particular case.
A government spokesman limply says that ‘this decision confirms that businesses can justify a compulsory retirement age based on legitimate aims’. But this is no use to a business in a situation where it has to take a gamble that ever-quirky tribunals will see it their way and there are no upper limits on compensation for age discrimination claims.
Once again, we see that poorly-drafted employment laws and creative judicial interpretations are adding to business uncertainty. And this is on the watch of a government which claims it will reduce the burdens on employers.