Are we back to mandatory retirement?


An interesting decision was handed down last week (April 2012). The Supreme Court considered the case of Leslie Seldon, a solicitor who was arguing that he had been unfairly dismissed when his law firm forced him to retire at the age of 65. The compulsory retirement age was abolished in October last year, he argued, and dismissing him was therefore a form of age discrimination.

His employers disagreed. They argued that as a business they had an obligation to provide for career progression and succession planning, and that that was a substantial reason to retire older employees. The Supreme Court agreed with the law firm and dismissed Seldon’s claim.

A setback for the law?

So does this mean that the law, drafted by parliament to end age discrimination, is not worth the paper it is written on? No. Not really. The court made it clear that this case concerned a small law firm with a particular promotion structure. In such cases there are strong arguments for maintaining compulsory retirement in order to promote younger staff or to plan for role succession.

In most cases then, it would not be fair to use retirement as an excuse for getting rid of a good employee without another cause. The advantage of the common law system in which judges interpret the law is that it is flexible enough to accommodate these concerns without undermining the act. If there had truly been a case of age discrimination, then Seldon would have won his case.

A balanced decision

In this decision, the courts have avoided the danger of a return to the old style of law in which litigants relied on fictions to achieve what they wanted. Businesses can now still say, honestly, that they are retiring someone due to their age, instead of having to come up with spurious allegations of poor performance or redundancy.

They are, however, obliged to do so in a non-discriminatory manner. They must consider carefully, and be prepared to demonstrate, that compulsory retirement is the right business decision and is not simply based on age-related prejudice.

This law is still new and undoubtedly there will be more refinements to come. Employers are advised to keep in contact with their employment solicitors and HR advisors in order to ensure they stay abreast of new developments.

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