Defending age discrimination claims
The Supreme Court has ruled on the age discrimination cases of Homer v Chief Constable of West Yorkshire Police and Seldon v Clarkson Wright and Jakes. These judgements provide clarity on when and how claims of direct and indirect discrimination on the grounds of age can be successfully defended. The Equality Act 2010 provides that both direct and indirect discrimination (the application of a provision, criterion or practice which on the face of it is neutral but in reality places individuals of a particular age or age group at a substantial disadvantage) will not be unlawful if it can be “objectively justified” as being a proportionate means of achieving a legitimate aim. There has been significant uncertainty as to what constitutes a legitimate aim. Today’s decisions have helped to clear up this uncertainty but in doing so have also narrowed the circumstances in which direct discrimination can be justified.
In Homer the Court gave guidance on when indirect discrimination can be justified and drew a distinction from direct discrimination. In an indirect discrimination case, the potential legitimate aims are wider as these can relate solely to the employer’s business needs and are not restricted to public interest aims such as social policy. In Seldon, the Court found that for an aim to be legitimate in the context of direct discrimination it must be of a public interest nature, for instance encouraging youth employment, and must be legitimate in the particular circumstances of the employer’s business. It upheld three suggested legitimate aims as being valid: staff retention, workforce planning and allowing older individuals to retire with dignity and not as a result of declining performance.
In both cases, the Court reiterated that Tribunals must follow a two stage test and ask 1) is there a legitimate aim? and 2) if so, is the discriminatory PCP a proportionate means of achieving that aim? Proportionality involves balancing the needs of the employer (the aim) against the discriminatory effect on the employee and considering whether the PCP is both appropriate and reasonably necessary in order to achieve that aim. In Seldon, it was not clear whether the precise compulsory retirement age of 65 years was an appropriate and necessary way of achieving one or all of the three aims. Could a higher retirement age have achieved the same purpose? This point will now be considered by an Employment Tribunal.
Employers must therefore be prepared not only to establish a legitimate aim (with this being potentially more difficult in direct age discrimination cases) but also to demonstrate why the particular measure, for instance a fixed retirement age, used to achieve that aim was proportionate. If the aim can be achieved in any other, non-discriminatory or less discriminatory way, then the employer may struggle to justify the measure it took.