Two recent Supreme Court judgements have helped clarify the circumstances under which age discrimination may be objectively justified.
Direct discrimination may apply where an employer seeks to retire an employee just because they have reached a particular age. This is particularly relevant now that UK law no longer allows employers to apply a default retirement age of 65.
Indirect discrimination may apply where, for example, an older employee is disadvantaged from progressing or being promoted by reason of their age. The employer doesn’t stop an older employee from progressing or being promoted, but the fact of their age puts an older employee at a particular disadvantage when it come to opportunities for progress or promotion.
The legislation that now deals with age discrimination is the Equality Act 2010. Section 13(2) allows that direct age discrimination may be justified if it can be shown that the discrimination in question is a “proportionate means of achieving a legitimate aim.” Section 19(2)(d) provides for the same objective justification in cases of indirect discrimination.
How did the two Supreme Court judgements deal with the necessity for an employer to objective justify their discriminatory acts as a “proportionate means of achieving a legitimate aim”?
In Seldon v Clarkson Wright and Jakes  UKSC16, Mr Seldon was a partner in a firm that had an agreed policy of requiring partners to retire once they reached age 65. Mr Seldon applied to work past his normal retirement, but his request was refused.
The Supreme Court accepted that the original employment tribunal made the right decision that “compulsory retirement was an appropriate means of achieving the firm’s legitimate aims of staff retention, workforce planning, and allowing an older and less capable partner to leave without the need to justify his departure and damage his dignity. The first two could not be achieved in any other way and introducing performance management would be difficult, uncertain and demeaning, so there was no non-discriminatory alternative to the third. Having balanced the needs of the firm against the impact of the rule upon the partners, it was a proportionate means of achieving a congenial and supportive culture and encouraging professional staff to remain with the firm .”
However, the Supreme Court was not prepared to accept that the partnership’s general retirement age of 65 could be justified. A younger or older retirement age could possibly be just as objectively justified. As the lead judge put it: “It is one thing to say that the aim is to achieve a balanced and diverse workforce. It is another thing to say that a mandatory retirement age of 65 is both appropriate and necessary to achieving this end. It is one thing to say that the aim is to avoid the need for performance management procedures. It is another to say that a mandatory retirement age of 65 is appropriate and necessary to achieving this end.”
Therefore, the Supreme Court remitted the case back to the Employment Tribunal to decide whether the partnership’s mandatory retirement age of 65 was a proportionate means of achieving the partnership’s legitimate aim. In conclusion, the lead judge stated: “There is a difference between justifying a retirement age and justifying this retirement age.”
In Homer v Chief Constable of West Yorkshire Police  UKSC15, the police authority introduced a new grading structure. Mr Homer could not progress to the top pay scale without his now obtaining a law degree, which had not originally been required when he took up his present job.
At the time of the introduction of the new grading structure, Mr Homer was aged 62. His normal retirement age was age 65, three years later, although he could extend his retirement for up to a year (when such was allowed pre the Equality Act 2010). Mr Homer realised that his undertaking the necessary part-time studying for a law degree meant he had no opportunity of obtaining such a degree until he was past retiring. Therefore, Mr Homer considered that his age put him at a disadvantage in comparison with younger employees who would already held a law degree or were in a better situation to study for one. Mr Homer claimed that the police authority’s new policy of requiring a law degree in order to benefit from the top pay scale was indirectly discriminatory against him by reason of his age and that this could not be objectively justified.
Commenting on whether the police authority’s actions could be objectively justified, the Supreme Court stated: “The range of aims which can justify indirect discrimination on any ground is wider than the aims which can, in the case of age discrimination, justify direct discrimination… It is not limited to the social policy or other objectives, but can encompass a real need on the part of the employer’s business.”
Therefore, “part of the assessment of whether the criterion can be justified entails a comparison of the impact of that criterion upon the affected group as against the importance of the aim to the employer… Mr Homer (and anyone else in his position, had there been someone) was not being sacked or downgraded for not having a law degree. He was merely being denied the additional benefits associated with being at the highest grade. The most important benefit in practice is likely to have been the impact upon his final salary and thus upon the retirement pension to which he became entitled. So it has to be asked whether it was reasonably necessary in order to achieve the legitimate aims of the scheme to deny those benefits to people in his position?”
In other words, should an exception have been made in the case of Mr Homer (provided of course that it could be done without discriminating against someone else on a prohibited ground)? After all, at the time he was recruited into his present position a law degree was not required. Was it fair, therefore, to expect him to now obtain a degree at his age in order to benefit from a higher pay scale? Or, should the new policy have been better structured so that it took into account the relevant experience Mr Homer had already achieved during his time with the Police?
Therefore, the Supreme Court remitted the case back to the Employment Tribunal to more accurately assess whether the actions of the police authority could be really objectively justified?