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In a landmark ruling yesterday, the UK Supreme Court said that workers can be made to retire at 65 if employers can show this is in the public interest. Although this might be welcomed by employers, the Court cautioned against adopting their own default retirement age, which was abolished by the Government in October last year.
The court dismissed the appeal by a solicitor, Leslie Seldon, who was required to retire by the law firm Clarkson Wright and Jakes just after his 65th birthday. Mr Seldon argued that his retirement was age discrimination and said he wanted to continue working at the firm, a request which was then turned down by the firm.
The court clarified that if an employer wants to justify direct age discrimination, i.e. have a set retirement age, then ensuring its reasoning was founded on legitimate social policy aims, such as young workers having the opportunity of becoming a partner, facilitating succession planning and limiting the need to force older individuals out by reason of poor performance was crucial.
But critics argue that this ruling will leave the door open for businesses to set their own retirement age for staff.
“The main messages to be taken from [the] complex ruling are the difficulty of providing well evidenced reasons to justify the retention of a retirement age and the importance of good performance management to safely dismiss a person fairly on the basis of capability rather than their age,” said Dianah Worman, Diversity Adviser at the Chartered Institute of Personnel and Development.
Leon Deakin, Employment Associate at Thomas Eggar LLP, also warned that “Although employers now have welcome confirmation of what could be legitimate aims for forced retirement, it will continue to be decided on a case by case basis what age is acceptable to use as a cut off to achieve these. Inevitably this remains a very difficult question for businesses to answer. Not least because it will be difficult to prove why retiring someone at 65 is more or less likely to achieve any stated legitimate aims as opposed to forcing them to go at 64, 66 or 67.”
Hence it will remain difficult for most employers to force employees into retirement. “Rather than paving the way for employers to justify a retirement age, I expect [the] verdict will prove to be of little advantage in practice,” Mr Deakin said.