A recent case has hit the headlines which acts as a reminder to employers of the risks of retaining a compulsory retirement age.
Former umpires George Sharp and Peter Willey have brought claims arguing that the Cricket Board’s decision to retire them from the first-class umpire list at the age of 65 amounts to both unfair dismissal and age discrimination. The Cricket Board has sought to defend the claims on the basis that the compulsory retirement of umpires is justified to enable younger players to take on new roles as umpires, and due to the ‘physical and mental pressures’ of the role.
The Equality Act 2010 abolished compulsory retirement ages in the UK from 1 October 2011. This means that employers who require an employee to retire will run the risk of facing a claim of discrimination.
Age is unique amongst the protected characteristics under the Equality Act, in that direct discrimination can be objectively justified. To defend a claim of direct age discrimination following a compulsory retirement, an employer must establish that the retirement age is intended to meet a legitimate aim and that the retirement age is a proportionate means of achieving that aim.
In the current case, the recruitment of younger employees and creation of job opportunities for retiring players would certainly be capable of amounting to a legitimate aim. However, the Cricket Board will need to show evidence that retiring over 65s will mean that such job prospects will be created, that the discrimination caused to older umpires is significantly outweighed by that aim, and that there are no other, less discriminatory, methods of achieving that aim. Any employers who have retained a compulsory retirement age should consider carefully whether they would be able to meet this high threshold, before requiring their employees to retire.
A particular concern when the Equality Act came in was that employers could be ‘stuck with’ under-performing employees over 65. That is not the case. Employers should remember to act consistently with employees of any age; that means tackling concerns regarding performance at an early stage and in the same way for all employees.