The Equality and Human Rights Commission funded the first two age discrimination cases heard by the Supreme Court earlier this month, arguing that the justification test for age discrimination allowed for in equality legislation is in urgent need of clarification.
Seldon v Clarkson, Wright and Jakes and Homer v Yorkshire Police Constabulary, both seek clarity on the justification test for age discrimination, i.e. a ‘proportionate means of achieving a legitimate aim’. Although the default retirement age was abolished in April 2011, employers can still end employment at a ‘notional’ retirement age and not fall foul of the law where the dismissal is: (i) not discriminatory, as it is justifiable to meet a legitimate business aim and is proportionate; and (ii) for one of the fair reasons under S.98 of the Employment Rights Act 1996. For this reason, the EHRC believes that Supreme Court’s clarification of the justification test has wide implications for retirement situations, and any other age discrimination, which an employer seeks to justify, and lawyers and employers need to understand when age discrimination is ‘justifiable’ in terms of the law.
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