Last year I wrote about Miriam O’Reilly’s successful age discrimination claim against the BBC when she was thrown off Countryfile. Yesterday it was reported in The Guardian that she is going to leave Auntie and run a women’s support network and seek other challenges. The parting is being reported positively, with Ms O’Reilly not taking the opportunity to stick the boot into the BBC, as she might well be justified in doing.
Age discrimination is a topical for employment lawyers at the moment because this week the Supreme Court is hearing the case of Seldon v Clarkson Wright & Jakes, another age discrimination case which will (hopefully) give guidelines on the circumstances in which it is permissible for an employer to require an employee or, in this case, a Partner in a law firm to retire. Age discrimination is the only type of discrimination that can be justified. The question therefore is: what is justifiable? It is hoped that this judgment will provide some guidance on this thorny issue. More probable of course, as @ljanstis has predicted, is the outcome where it will all be said to depend on the facts in each case (with Lady Justice Hale strongly dissenting), leaving the situation just as unclear as it is at the moment.
Seldon should be finished today and the Judgment, which will be handed down in due course no doubt, will be keenly anticipated. To recap: the Court of Appeal held that it was possible for a partnership to justify the compulsory retirement of an individual at a particular age if it can be shown that it is a proportionate means of achieving a legitimate aim. In this case although it was held that forcing Mr Seldon to retire was directly discriminatory, it could be justified on the basis of it allowed associates to come through the ranks and achieve partner status, which also meant they wouldn’t leave to further their careers elsewhere, it facilitated succession planning and reduced the need to remove partners through performance measures.
The Court of Appeal dismissed Mr Seldon’s appeal. It’s an issue that goes to the heart of the age discrimination problem with strong arguments on both sides. Which takes precedence: an employers’ right to manage its business and encourage new blood or throwing good people out just because they’ve passed a particular birthday? Personally, I hope Mr Seldon wins because otherwise I can’t see how the age discrimination legislation can have any credibility.
There is also another age discrimination claim being heard at the Supreme Court – on indirect age discrimination. Homer v West Yorkshire Police is about indirect age discrimination. Following the introduction of a new career structure he was refused entry to the highest pay band because he did not have a law degree. Mr Homer brought a claim for indirect age discrimination on the grounds that at 61 years of age he would be unable to gain a law degree before he retired, unlike younger applicants. Again, judgment is awaited.
You can watch the progress of these cases via the Supreme Court website and Sky “Supreme Court Live”, unless you’d prefer to watch the cricket on Sky, which I wouldn’t recommend as England are currently 68 – 4. Whether the Judges will be as equally decisive remains to be seen.