Q&A: Update on age discrimination
13 August 2008
Q. What cases are being taken?
Q. What about non-compulsory retirement?
Q. What about claims during employment?
Q. Can employers discriminate during recruitment?
What cases are being taken?
There are some discernable trends from the recent age discrimination case law, emanating from both the European and UK courts. Many of the cases so far are about retirement, and the key issue tends to be justification.
The issue of state compulsory retirement age has been considered recently by the European Court of Justice (ECJ), in Palacios de la Villa v Cortefiel Servicios. Mr Palacios was dismissed at age 65 when he reached the normal retirement age under Spanish compulsory retirement laws.
The ECJ accepted that Spanish compulsory retirement laws were discriminatory on grounds of age, but held that the legislation was justified on the basis that it was for the purpose of a legitimate social policy, for the promotion of employment and opportunities.
A similar challenge to the compulsory retirement provisions in the UK is currently being considered by the courts in R (on the application of the incorporated trustees of the National Council on Ageing) v the secretary of state for business, enterprise and regulatory reform, known as ‘the Heyday challenge’.
The age discrimination legislation in England and Wales allows compulsory retirement over the age of 65, provided a special procedure is followed whereby the employer invites the employee to apply to remain in employment.
The purpose of this procedure is to allow workforce planning and avoid adverse impact on pensions and other benefits. The provisions are currently being challenged by Heyday, a group promoting the rights of older workers backed by Age Concern.
The issues raised have been referred to the ECJ, and a decision is expected sometime in 2009. In the meantime, cases such as Johns v Solent SD Ltd about compulsory retirement age are being stayed by employment tribunals.
What about non-compulsory retirement?
Arrangements for retirement specific to particular employers – as opposed to statutory arrangements – have also been subject to challenge. In Bloxham v Freshfields, an employment tribunal considered a complaint of age discrimination brought by a former partner of a law firm seeking to challenge the provisions of his pension scheme, under which a 20 per cent discount applied to those who retired at 54 as opposed to 55.
The tribunal accepted that the provision was discriminatory but held it was nevertheless justified on the basis that it was intended to provide a more sustainable partnership pension arrangement.
Similarly, in Seldon v Clarkson, Wright & Jakes, a tribunal found that a requirement for compulsory retirement at 65 in partnership deed of solicitors’ practice was justified, in part to permit promotion opportunities for younger staff coming through.
This contrasts however, with the tribunal’s recent finding in Hampton v Ministry of Justice, another claim in a legal context. The tribunal held that the compulsory retirement of recorders at 65 was not justified.
These three cases are tribunal decisions only and are not binding in future cases, but are illustrative of the fact that justification is highly fact-specific and that each case needs to be considered on its own merits.
What about claims during employment?
Age discrimination claims can arise during employment as well. In Smith v Strathclyde Fire Board an employment tribunal considered a complaint concerning Strathclyde fire service’s policy of filing short-term vacancies by temporary promotions.
In selecting officers for temporary promotion, priority was given to those with training or development needs, in order to prevent a widening skills gap that would occur if only the most experienced officers were chosen.
Mr Smith argued this was indirectly discriminatory, because older officers who had already gained significant skills and experience would have less opportunity for temporary promotion and that to promote a less experienced officer could not be justified.
However, the tribunal accepted Strathclyde Fire Board's criteria were justified because they were intended to meet the legitimate aim of training and developing officers, to protect the public.
Further, it was proportionate to seek to ensure an adequate spread of skills and experience across all ages, particularly where a large number of experienced officers were due to retire.
Can employers discriminate during recruitment?
The Employment Equality (Age) Regulations (Northern Ireland) 2006 apply in Northern Ireland and mirror the Age Regulations that apply in Great Britain.
In McCoy v James McGregor & Sons Limited, Dixon and Aitken, a Northern Ireland industrial tribunal heard how an employer rejected Mr McCoy, who was aged 58 and had more than 30 years' experience in the relevant field, and offered jobs to two significantly less experienced applicants, both 15 years younger.
Mr McCoy applied to a job advertisement that used the words “youthful enthusiasm" and referred to the employer's focus on "drive" and "motivation".
During the interview process the employer raised the subject of his age and queried his drive and motivation. The tribunal held that the use of the term "youthful enthusiasm", along with other evidence was sufficient to give rise to a prima facie case.
The employer was unable to present a credible explanation or evidence to show that the less favourable treatment had occurred for a non-discriminatory reason and as the burden of proof had shifted to the employer by Mr McCloy raising a prima facie case, he won his claim of direct discrimination.
The tribunal held that but for his age, Mr McCoy would probably have been selected.
The case is a useful example of how age-tainted language in a job advertisement and age-related questions in an interview may result in an inference being drawn that the employer has taken into account the age of the applicant in a way that can be discriminatory.
What about young workers?
The provisions protect young workers as well, and we are now starting to see reported decisions in age discrimination claims by young workers.
For example, in Wilkinson v Springwell Engineering Ltd, an employment tribunal held that Ms Wilkinson, a 19-year-old admin assistant, had been discriminated against on the grounds of her age when her employers dismissed her for being too inexperienced.
The tribunal found the employer was assuming a relationship between experience and age on the one hand, and lack of experience and incapability on the other.
It was ordered to pay compensation and provide any future employers with a truthful reference, clearly stating that dismissal was carried out in breach of the regulations on the grounds of age and not on the basis of ability.
The case serves as a useful reminder that age discrimination laws provide protection for those at every stage of their working lives – not just for those approaching the end of their careers but also those just starting out, and all stages in between.
This information is not intended as legal advice on individual cases. With thanks to Russell, Jones and Walker solicitors.
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