Mandatory Retirement Age

The Supreme Court has delivered a judgment today  in the  case of  which has implications on how a business can justifiably implement a Mandatory Retirement Age. The court have ruled that the test for justifying direct age discrimination is different and narrower than the general test for justifying indirect discrimination.
The case was brought by a Partner who was forced to retire from  of a solicitors firm in Kent  when he became 65.

The  Court held that the compulsory retirement age contained in the firm’s  partnership deed was  directly discriminatory. However they stated that  such a provision  was capable of justification if it could show that   fairness between generations was a legitimate aim for employers.

It would appear that the test employer must satisfy  for justifying direct age discrimination is:

1. identify the actual objective being pursued, although it may not have been articulated or even realised when the measure was first adopted .
2. Once an aim has been identified, it has to be asked whether it is legitimate in the particular circumstances of the employment or partnership concerned.
3. Finally, the means chosen must be both appropriate and necessary to achieve that aim

Two broad categories of aim had been accepted as legitimate by the European Court: inter-generational fairness and preserving the dignity of older workers.

 

The three aims accepted by the Employment Tribunal in this case were consistent with the European Court. Staff retention and workforce planning were directly related to the social policy aim of sharing out professional employment opportunities fairly between the

generations. Limiting the need to expel partners by way of performance management was directly related to the “dignity” aim  (despite some reservations expressed about this aim generally.

 

As to the second issue, the wording of regulation 3 suggests that the focus is on whether the treatment of Mr Seldon  in particular was justified. However, “…where it is justified to have a general rule, then the existence of that rule will usually justify the treatment which results from it.”. Often, requiring the application of the rule to the individual to be specifically justified would negate the purpose of having a rule in the first place.

However, all businesses will now have to give careful consideration to what, if any,

mandatory retirement rules can be justified in their particular business.

The case has been sent back to the Employment Tribunal to determine  whether 65 was an appropriate age for Mr Seldon to be retired.

Iain Lock Managing Partner stated “ it appears now that businesses may have a  means of retiring employees in certain circumstances. However the test as set out above must be applied and met and this will not mean that everybody can be retired in all circumstances. It must also be remembered that the case is going back to the employment tribunal to determine whether 65 was an appropriate age to achieve the legitimate aims of the partnership. I expect there to be other cases particular surrounding the issue of an appropriate age as this will vary depending on the work sector. Careful consideration should be given to any policies that are to be drafted with regards to retirement to see if they can meet the test set out by the tribunal ”

Did Carlos Tevez really refuse to play for his club against Bayern Munich in the Champions League? If so, can Manchester City lawfully sack him?

The headlines are full of reports that Argentinian forward Carlos Tevez refused to play for his club when called from the substitutes bench by Manchester City manager Roberto Mancini during the match against Bayern Munich in the Champions League this week. Mancini is reported to have said that he felt that Tevez could never play for City again after this incident. The striker, who earns more than £200,000 a week at Man City, has been suspended for two weeks and the debate over his footballing future continues.

Reports state that Tevez is claiming that he did not refuse his boss’ request to play and the whole episode results from a misunderstanding. However, if it is true that he failed to obey his employer’s order, what does the law say about how they are entitled to react?

Under the common law, which forms the basis of our country’s legal system, there are fundamental implied duties between both parties to an employment contract. One such duty for the employee is that he will obey all lawful and reasonable orders from his employer. Arguably, a professional footballer being asked to play football for the team that employs him constitutes such an order.

If it is the case that Tevez was asked to play and refused, it seems highly possible that he is guilty of breaching his contract. Such a breach could be legitimate grounds for dismissal.

As ever, it is crucial that Manchester City, as the employer in the situation, follow the correct disciplinary procedures to deal with the breach. An employee’s misconduct is a potentially fair reason for dismissal but the actions carried out by the employer while dealing with the same is crucial to the eventual outcome.

Existing Q and A Law Clients who subscribe to our fixed fee employment law service with free telephone advice line are encouraged to speak to Iain or Lisa with any questions they might have arising from any of the above. Non-clients are also welcome to take advantage of a fee-free initial consultation with the same regard. Please call 01707 444450 and ask for Iain Lock or Lisa May who would be happy to talk with you.