The Justification for Direct Age DiscriminationPrintPdfClose »

25/05/2012

The Supreme Court has ruled (Seldon v Clarkson Wright and Jakes) that the test for justifying discrimination on the ground of age is narrower for direct discrimination than for indirect discrimination. To defeat a claim of direct discrimination, the employer must show that the treatment stems from an aim that can be objectively and reasonably justified as pursuing a legitimate social policy derived from the EC Equal Treatment Directive, such as those related to employment policy, the labour market or vocational training. Such aims are of a public interest nature as distinct from those which relate to the individual needs of a particular business, such as cost reduction and improving competitiveness. The European Courts have identified two different kinds of legitimate objective, which can be summed up as inter-generational fairness and dignity – e.g. preserving the dignity and avoiding humiliation of older workers who are underperforming.

The focus must then turn to whether the identified aim is legitimate in the particular circumstances of the case and is actually being pursued. Finally, the means of achieving that aim must be both appropriate and necessary. The means must be carefully scrutinised in the context of the particular business in order to see whether they do meet the objective and there are not other, less discriminatory means that would achieve the same result.

This is not an easy test to pass. Businesses that do wish to have in place a mandatory retirement age are advised to seek legal advice on their individual circumstances.

 

 

Kerry Curd

Associate Solicitor
T: 01626 202406
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