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Dean Wilson Solicitors: Age discrimination
Victoria Wright of local solicitors Dean Wilson LLP discusses justifying age discrimination
Age discrimination – when was it justified to retire unwilling employees at 65?
Why did cricket umpires Peter Willey and George Sharp lose their age discrimination claims?
In March, cricket umpire Peter Willey (a former England test cricketer and chairman of umpires) and his colleague George Sharp lost their age discrimination claim against the England and Wales Cricket Board (ECB). The basis of their claim was that they were forced to retire at 65.
Unlike other forms of direct discrimination (treating someone less favourably because of their race, sex, disability etc), direct age discrimination is capable of being objectively justified. In this case, the ECB successfully argued that sacking umpires at age 65 was objectively justified to ensure opportunities for succession planning and appointment of new umpires.
The ECB also argued that it was common sense that umpires should retire at 65 because after that age they would find it difficult to react quickly enough and to stand up for long periods of time, although it agreed that there is no scientific evidence that umpires' performance deteriorates once they reach a particular age.
In 2020 the state retirement age for both men and women will increase to 66 and between 2026 and 2028 it will increase to 67.
The arguments for succession planning and encouraging new talent are not new ones. Clearly an organisation wants to have a steady turn over of new talent and does not want there to be a log-jam of staff in their sixties, the consensus is that the younger staff will simply leave if they cannot see the potential for progress. To justify direct age discrimination, the employer must show that the policy is in pursuit of legitimate social policy aims, and not merely its own private interests. Social policy aims include those related to employment policy, the labour market or vocational training. Such aims are distinguishable by their public interest nature from purely individual reasons particular to the employer's situation, such as cost reduction or improving competitiveness.
There is a balance to be struck between a career path with the potential for suitable opportunities arising with some certainty and managing this expectation with the retirement of staff who have reached a certain age. It may well be that in sectors where there are very few employers or limited professional opening, such as for a cricket umpire, it is easier to rely upon objective justification, as long as the employer can demonstrate social policy aims.