Legitimate aims have to be
consistent with social policy

In Seldon v Clarkson
Wright & Jakes and Secretary of State for Business Innovation and Skills,
the Court of Appeal held that a rule requiring partners to retire at 65 was a
proportionate means of achieving a legitimate aim. In doing so, the Court ruled
that a legitimate aim must be consistent with the social or labour policy of
the United Kingdom.

In this age
discrimination case, the Court of Appeal upheld a tribunal’s decision that a
rule requiring partners in a law firm to retire at 65 was a proportionate means
of achieving the legitimate aims of workforce planning and providing associates
with promotion opportunities. While this decision rests on the particular
circumstances of this employer’s needs, the Court’s examination of the meaning
of a ‘legitimate’ aim is of major interest.

Mr Seldon argued that
following the ECJ’s judgment in Palacios de la Villa v Cortefel Services SA,
Article 6.1 of the Equal Treatment Framework Directive 2000/78/EC, which allows
exceptions to the principle of non-discrimination on grounds of age, a business
aim cannot be legitimate if it only relates to the business itself and is not
linked to national social policy objectives, such as those related to
employment policy, the labour market or vocational training. 

The Court, however, rejected the interpretation of Palacios. That case
confirmed that national legislation, such as the UK’s Age Regulations 2006, must be
linked to national social and employment policy. But that is not the same as
saying that a particular employer can only have ‘national’ social or employment
policy aim, since Palacios also allowed discretionary powers or a degree of
flexibility for employers. However, while the aim can relate to a specific
requirement of the business, the employer’s actions must nevertheless be
consistent with the social or labour policy of the United Kingdom. This brings an
added dimension to justifying age discrimination – see the Editorial on Page 1
for further comment.