Partner Article

Thomas Eggar LLP on forced retirement ruling

Leon Deakin, Employment Associate at Thomas Eggar LLP, comments on the UK Supreme Court ruling, that outlines powers that employers have to force workers to retire.

Following a detailed assessment of yesterday’s ruling it seems the most important and tricky issue that employers need to grapple with when considering compulsory retirement remains unanswered. The court clarified that if an employer wants to justify direct age discrimination (i.e. have a set retirement age) then ensuring its reasoning was founded on legitimate social policy aims, such as young workers having the opportunity of becoming a partner, facilitating succession planning and limiting the need to force older individuals out by reason of poor performance was crucial.

Although employers now have welcome confirmation of what could be legitimate aims for forced retirement, it will continue to be decided on a case by case basis what age is acceptable to use as a cut off to achieve these. Inevitably this remains a very difficult question for businesses to answer. Not least because it will be difficult to prove why retiring someone at 65 is more or less likely to achieve any stated legitimate aims as opposed to forcing them to go at 64, 66 or 67.

Consequently, unless an employer can come up with strong evidence to support why they have chosen a particular age for forced retirement it is unlikely to satisfy the proportionate test. Indeed, unless there is some form of solid facts and figures to support a specific cut off age, such as health and safety research, the employer will be left severely exposed. In my experience most employers have struggled to find such evidence, especially in service related or professional sectors.

“It therefore appears that despite this ruling it will remain just as difficult for the majority of employers to compel someone to retire. Rather than paving the way for employers to justify a retirement age, I expect today’s verdict will prove to be of little advantage in practice.

This was posted in Bdaily's Members' News section by Thomas Eggar .