Roland Fairlamb is an Associate Solicitor at specialist employment law firm, Collingwood Legal. Roland considers a recent case concerning age discrimination and considers calls to reform the law in this area.
Scott v Walker Morris LLP
Age is a unique characteristic under the Equality Act 2010 (“EqA 2010”). Unlike direct discrimination claims relating to the 8 other protected characteristics identified within the EqA 2010, when an employee raises a claim of direct age discrimination it is open to the employer to defend itself by saying that its actions, while discriminatory, were objectively justified.
These competing concepts played out in the case of Scott v Walker Morris LLP, where the employee alleged that his employer’s refusal to accept his application to extend his Partnership and delay his retirement constituted direct age discrimination. His employer accepted that the application of its retirement age was discriminatory but argued that it was a proportionate means of achieving a legitimate aim (being to protect the interests of business and ensure intergenerational fairness).
The Employment Tribunal (“ET”) accepted that the retirement policy had legitimate aims, namely, to avoid difficult performance management of older Partners and to aid succession planning to ensure that the business had enough Partners to run a profitable business. However, the ET held that the treatment of the employee was not appropriate or reasonably necessary to achieve those aims. The ET concluded there was no evidence that the employer’s policy aided succession planning or that performance was deteriorating when Partners reached their 50s and 60s. The ET added that these aims could have been achieved by less discriminatory alternatives.
Parliamentary committee looks to tackle “ageism”
In the decision in Scott, the ET commented that some of the assertions made by the Respondent in seeking to justify its retirement policy were based on discriminatory assumptions (for example, that energy levels began to reduce for Partners in their 50s and 60s).
The Women and Equalities Committee in Parliament has recently published a report, the Rights of Older People, which suggests that discrimination law is not providing sufficient support for older people and that ageism (and assumptions around age) are widespread in the UK. It proposes that the Equality and Human Rights Commission review the protections which exist in the EqA 2010 and whether there should be a requirement for an employer to take reasonable steps to prevent age discrimination (similar to the new obligation on preventing sexual harassment, introduced in October 2024).
What can employers learn from the ET and Parliament
There is no suggestion that age discrimination law is going to change imminently, and while Parliament is clearly concerned about age discrimination, the case in Scott highlights that employers face an uphill struggle objectively justifying retirement policies, especially where claimants argue that the rationale behind the policy is tainted by assumptions based on age. Retirement policies are less common in workplaces now, but employers should be mindful of the risk of being consciously or unconsciously influenced by assumptions based on age.
How we can help – Essential Manager Training
Dealing with risks concerning discrimination and harassment are covered in Collingwood Legal’s Essential Manager Training from April to July 2025.
Each module below is 90 minutes long and takes place remotely:
1. Introduction to employment law for managers – 10 April 2025
2. Having difficult conversations – 1 May 2025
3. Managing discipline and grievances – 15 May 2025
4. Absence management, disability and adjustments – 5 June 2025
5. Discrimination, harassment and bullying – 19 June 2025
6. Ending the employment relationship – 3 July 2025
Please email sue.graham@ collingwoodlegal.com or view the Events section of our website www.collingwoodlegal.com for further information.
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