Age Discrimination is unique in that it remains the only form of direct discrimination that can be objectively justified. The Supreme Court considered a case yesterday that could fundamentally change the existing rules.
You may have thought that once the government abolished the default retirement age employers could no longer fairly dismiss you just because you had reached a specific age. Many employers removed their contractual retirement age, some did not. Contractual retirement ages have been considered perfectly lawful, provided these are necessary based on a genuine business reason. (The “objective justification” defence).
An example of this may be where a law firm wishes to be able to offer partnerships to up and coming lawyers- but unless there is an age at which the older partners must retire, there will be insufficient partnership opportunities and their best lawyers will go elsewhere. This is the case that is being decided in the Supreme Court. If the Supreme Court were to find that a fixed contractual retirement age is unlawful, then employment contracts will need to be reviewed, contractual retirement ages deleted and other means found to justify dismissal- not based on age!
Liz Whitehead, Solicitor, Employment Department
