Business Soapbox: Shirley Blair
We ask an expert if you can require an employee to retire at 65
While it might seem easier to make a worker head off into the sunset, the final decision on the Seldon case will hold the key to determining the rights and wrongs of this issue
The 'default retirement age' has been abolished but the Supreme Court has recently said that it may still be possible to require an employee to retire at 65 (Seldon v Clarkson Wright and Jakes).
Much of the initial press coverage of this case suggests that this decision has made it easier to force employees to retire without risking a valid age discrimination claim.
Whilst it is true that the Supreme Court has offered guidance over what might constitute acceptable reasons for effecting the dismissal, there are still a number of important tests that will have to be satisfied.
Requiring an employee to retire is likely to constitute direct age discrimination.
However, unlike other forms of direct discrimination, direct age discrimination can potentially be justified by reference to the social policy aims of the state.
In Seldon, the Supreme Court has identified two kinds of legitimate social policy objective. The first objective is 'inter-generational fairness' - that is, facilitating access to employment and promotion for young people and enabling older people to remain working.
The second is 'dignity', which could include the need to dismiss older workers on the grounds of underperformance to preserve their dignity, avoid humiliation and costly disputes.
It doesn't end there however. An employer must then go on to show that the objective was 'proportionate'.
In other words it will have to be able to show that the particular retirement age was appropriate and necessary.
The Supreme Court has expressly stated that the philosophy underlying discrimination law is right, saying: "To be treated equally irrespective of either irrational prejudice or stereotypical assumptions ... the fact that most people over a certain age have slower reactions than most people under that age does not justify sacking everyone who reaches that age irrespective of whether they have the necessary speed of reaction."
Therefore whilst 'dignity' for example might amount to a legitimate aim, it might be difficult to argue that retirement based on that aim alone is proportionate based on the particular circumstances.
The Seldon case has been remitted back to the tribunal to consider this very question of proportionality.
Its decision is eagerly awaited.
Shirley Blair is an associate solicitor in the employment law department at A&L Goodbody, Northern Ireland