In its first two judgments on age discrimination handed down last week, the Supreme Court has said that it is more difficult for employers to justify direct as opposed to indirect discrimination.
In Seldon v Clarkson Wright and Jakes, Mr Seldon (a partner in a law firm), argued that his employer had directly discriminated against him when it enforced the firm’s mandatory retirement age for partners.
The Court accepted that the firm had legitimate reasons for having a retirement age, but sent the case back to the Tribunal to decide whether a retirement age of 65 (and not some other age), was a proportionate means of achieving the legitimate aims of the partnership. It also clarified that when justifying direct age discrimination, the legitimate aims must be of a social policy nature.
In the case of Homer v Chief Constable of West Yorkshire Police, Mr Homer argued that he had been indirectly discriminated against when his employer introduced a new structure which required a law degree for promotion to the top grade. As he was 62 by then, he would have exceeded the retirement age of 65 by the time he had completed a part-time degree.
The Court agreed the requirement for a degree was indirect age discrimination but sent the case back to the Tribunal to decide if the employer could justify the requirement as a proportionate means of achieving a legitimate aim.
It added that it is the criterion itself that must be justified as opposed to its discriminatory effects on the individual. However part of that assessment includes comparing the likely impact of the criterion on the affected group as against the importance of the aim to the employer.
We will summarise both cases in a future edition of LELR.