In this article...

• The background
• The justification defence
• Reigning in “youthful enthusiasm”
• What does this means for me?

The background

The Employment Equality (Age) Regulations (“the Age Regulations”) came into force in October 2006 and prohibit unjustified discrimination on the grounds of age. Unlike other discrimination legislation, all forms of age discrimination may be justified if it can be shown that the discrimination is a proportionate means of achieving a legitimate aim.

The Age Regulations provide for a default retirement age of 65 years old and allow that retirement of employees at this age will not be discriminatory. This exception does not, however, apply to partners (such as members of a law firm partnership) or office holders (such as members of the judiciary). Any compulsory retirement provisions in relation to partners and office holders must, therefore, be justified. Furthermore, the Age Regulations prohibit discrimination against partners and office holders in relation to their access to benefits.

The Age Regulations also apply to arrangements for determining to whom employment should be offered.

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The justification defence

In Seldon v Clarkson Wright & Jakes and Hampton v the Lord Chancellor and the Ministry of Justice (both unreported), two different tribunals approached the question of the justification of age discrimination by establishing the defendants’ aims and determining whether:

		those aims were legitimate; and
		whether a compulsory retirement age is a proportionate means of achieving those aims.

In Seldon v Clarkson Wright & Jakes, the tribunal held that the compulsory retirement of a partner was discriminatory but justified. The tribunal held that enabling employers to meet younger employees’ expectations for career advancement (i.e. encouraging “young blood”) was a legitimate objective. The aims of planning for vacancies and limiting the need to expel partners through performance management were also held to be legitimate. The compulsory retirement of partners was held to be a proportionate means of achieving those aims.

By contrast, in Hampton v the Lord Chancellor and the Ministry of Justice, the tribunal found that the compulsory retirement of Recorders was discriminatory, but not justified. The tribunal held that the Ministry's aim of maintaining a “reasonable flow of new appointments” for Recorders’ posts was legitimate. However, the tribunal did not accept that the compulsory retirement age was a proportionate means of achieving that aim, as there was no evidence to suggest that this would increase the numbers of suitable candidates for the judiciary. Accordingly, the Ministry's retirement policy was held to be discriminatory.

In October 2007, an employment tribunal decided in Bloxham v Freshfields Bruckhaus Deringer (unreported), that reform of the defendant firm’s pension scheme was a legitimate aim and that the means used to achieve that aim were proportionate. The tribunal particularly noted that the aims of the reform could not have been achieved in any less discriminatory way, so were permissible.

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Reigning in “youthful enthusiasm”

In McCoy v McGregor & Sons Ltd and others (unreported), the defendant’s advertisement for sales representatives referred to a requirement for “youthful enthusiasm”. Mr McCoy applied and, throughout the interview process, was quizzed about his age, his “drive and motivation” and his “hunger for success”. Mr McCoy was 58 years’ old and had 30 years of relevant experience, but was unsuccessful in his application. The two candidates who were shortlisted were aged 43 and 42.

The tribunal found that the company had failed to provide any credible, non-discriminatory, explanation for their treatment of McCoy. Therefore, the tribunal concluded that the company’s conduct was discriminatory on the grounds on age.

What does this means for me?

		It is important to note that all of these decisions are first instance, so they do not set out any binding guidelines on how the Age Regulations should be applied.
		The contrasting decisions in Seldon and Hampton show that age discrimination cases are likely to be fact sensitive. However, where a discriminatory effect is likely to be found, you should consider the reasons for it and particularly consider whether you could achieve the same result in a non discriminatory way.
		These initial cases suggest that there is likely to be a risk in retiring non-employees, but you are likely to have a defence if you can justify the retirement. In these cases it will be important to show not only that there is a legitimate aim, but that retirement is actually going to achieve that aim (unlike in Hampton).
		Remember that references to age related qualities (such as “youthful enthusiasm” or “mature understanding”) are equally as likely to fall foul of the Age Regulations as a requirement for employees to be a specific age.
		If an age related quality is genuinely required for a position, consider why, and ensure that all candidates are asked the same questions at interview, regardless of their age.