In brief, some of the legal principles were:
■ The Heyday case, which ruled that a default retirement age of 65 could be justified if there was a legitimate social aim.
■ The European Court of Justice case of Fuchs and another v Land Hessen, which held that the concept of using a balanced age structure to provide access to employment by younger people, to the promotion of younger people and to prevent disputes concerning fitness to work beyond a certain age, was legitimate and proportionate.
■ The ECJ case of Prigge and others v Deutsche Lufthansa, which considered whether a provision in a German collective agreement precluding airline pilots from working beyond the age of 60 was age discriminatory. It held that a compulsory retirement age of 60 for Lufthansa airline pilots (contained in a collective agreement recognised by German law) was age discrimination, as international law fixes the age limit for airline pilots at 65 – therefore the compulsory retirement age of 60 was not “necessary” to achieve the proposed result.
These cases are all well and good, but they are focussed on large employers. How about small employers?
Seldon
Here I think we have to turn to the Seldon case, which concluded in an employment tribunal at the end of May 2013.
In a nutshell, Mr Seldon was a partner in a law firm. The partnership agreement contained a clause that meant a partner had to retire at age 65 – Mr Seldon argued this was age discrimination but the partnership said it needed to ensure workforce planning (that is, the partnership employs juniors who ultimately want to become partners and therefore partners have to retire for ‘new blood’ to come through).
The case originally commenced in 2006/2007 and, having gone through the employment tribunal up to the supreme court, was finalised just a few weeks ago.
The supreme court had concluded that legitimate workforce planning was acceptable and referred back to the tribunal to find out if the case in question was proportionate. It decided that, by imposing a retirement age for partners of 65, the firm struck an acceptable balance between the needs of the firm and the individual partner.
For me, the judgement and its conclusion left open a few issues:
■ Can it be applied to a number of employers or will each employer have to justify his or her workforce plan?
■ The retirement age in question for the Seldon judgement was 65. But this case commenced in 2006. Since then there has been a move away from retirement at 65 and an increase in state pension age. Would age 65 be proportionate in today’s terms when retirement at 65 is no longer the norm?
■ Does this decision apply just to partners or other employees?
