The UK Supreme Court has delivered its judgments in two important age discrimination and retirement cases this week. Discussing the impact of these decisions, Graeme Dickson of Thorntons Law's specialist employment team, believes that although the law has now been made clearer, there are key questions that still need to be answered.
"The law on the issue of age discrimination, and its implications to the law on retirement, is a complex one and the 2011 law change, to remove the 'default retirement age' of 65, did not simplify matters.
"This week's judgments, concerning Leslie Seldon and Terence Homer, have gone some way in clarifying the law.
"Mr Seldon was a partner at Kent law firm, Clarkson Wright, and he wanted to keep working beyond the retirement age set out in the partnership agreement. However the other partners did not agree and he was forced to retire.
"He challenged this, claiming he had been directly discriminated against on the grounds of his age. Although the Employment Tribunal accepted that being forced to retire could amount to discrimination, the law does allow direct discrimination on the grounds of age to be justified, provided it could be shown to be a proportionate means of achieving a legitimate aim.
"This is a potentially tough test, but the tribunal accepted the law firm's defence that they did have legitimate aims and therefore found in favour of the law firm. However Mr Seldon appealed, challenging if the UK law was in line with European law.
"This week's ruling has confirmed that European law accepts that inter-generational fairness and preserving the dignity of older workers are both legitimate aims and upheld the tribunal's decision. However it ordered the tribunal to consider whether those aims could be met by having a retirement age other than 65.
"In the second case, a senior employee with West Yorkshire Police claimed he was being indirectly discriminated against when the introduction of a new policy meant he would have to obtain a law degree before being eligible for promotion.
Terence Homer, 62, argued that it would take four years for him to achieve this qualification and he would be unable to complete the course before he was due to retire.
"The Supreme Court agreed that this requirement discriminated against him and the Employment Tribunal has been ordered to reconsider whether the Force's policy could be objectively justified.
"Both of these verdicts have given clarity on what can possibly amount to a legitimate justification for an otherwise unlawful policy, or rule, on the grounds of age. But these categories could be widened by later decisions.
"Equally the key issue of what age an employer can legitimately impose as a mandatory retirement age remains unclear. Tribunals will still need to consider claims on their specific facts on a case-by-case basis.
"Employers also need to remember that an employee's ability to do a job is not based on their age. It is not necessarily the case that the older the worker gets, the less able they are to fulfil their role.
"Policies that directly or indirectly discriminate against people because of their age must be carefully thought through by employers before being implemented.
"With the reconsideration of two of the fundamental elements of the recent disputes, this is unlikely to be the last we hear about these matters."
Graeme Dickson, Senior Solicitor