The age old question – retiring partners

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  • It is important that the profession realises what the judgment does do, which will have practical effects:
    1. It applies to all types of direct age discrimination;
    2. It propounds a test for justification which is structured in a different way to the test used previously in the litigation;
    3. The test for justifying direct age discrimination, as now clarified, is that employers must show:
    (1) They have an aim.
    (2) That aim is potentially legitimate in that it is capable of being a “public interest” aim as specified in the Framework Directive (2000/78/EC) [59]. Those “public interest” aims are distinguishable from purely individual aims particular to the business, such as cost reduction or improving competitiveness.
    (3) The aim is also legitimate in the particular circumstances of the case [58] & [61]. A potentially legitimate aim within the Directive may not be so for the particular business concerned. This is explained by the examples given in [61]: so, avoiding the need for performance management is an aim directly connected with the “public interest” aim relating to “dignity” but if, in fact, the business already has sophisticated performance management procedures in place, it may not be legitimate to disapply them for one section of the workforce. This requires particular scrutiny of the aim in the context of the individual business to see if it is legitimate for that employment.
    (4) The means chosen to achieve the aim must be both appropriate and necessary. In Homer v Chief Constable of West Yorkshire Police, the SC emphasises that proportionality must be approached by considering both these aspects separately. This will involve considering whether there are other, less discriminatory, measures which would achieve the aim.
    This test represents a narrowing of the circumstances in which an employer can justify direct discrimination.

    Crucially the employer has to show legitimacy within the context of the particular case. This is a far more difficult test to satisfy in principle than the mere requirement for consistency which the CA used. Further the case firmly establishes that aims must have a public interest nature in order even to pass the second stage of the test.
    The case also points out that one of the things that could render the aim of dignity in departure illegitimate is if the employer has a performance management system. The point is that the existence of the PMS means that it would not be legitimate to disapply it to one age defined section of the workforce.
    Thus in practical terms the case means that practices will have to look at the features of their own business to see whehter an aim like collegiality can be a legitimate aim in that context, and if they cannot produce evidence to demonstrate this, the mere assertion of the aim will be insufficient to render it legitimate.

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