Last year in the widely reported case of Bloxham v Freshfields Bruckhaus Deringer, the employment tribunal gave guidance on objective justification in relation to direct age discrimination for the first time. In that case it found that the implementation of a financially sustainable and fairer pension scheme which addressed disadvantage to younger partners, was a legitimate aim and that this aim had been achieved by proportionate means (including a lengthy consultation process).

There are now two further cases that also deal with objective justification – Hampton v Lord Chancellor & the Ministry of Justice and Seldon v Clarkson Wright & Jakes. Both cases involved policies of compulsory retirements at age 65.

Regulation 30 of the Employment Equality (Age) Regulations 2006 permits the compulsory retirement of employees at age 65. However, this exemption does not apply to other workers such as partners or office holders, meaning that the compulsory retirement of such persons will need to be objectively justified. Objective justification in this context will require a respondent to identify a legitimate aim or aims and then show that implementing such a policy of compulsory retirement is a proportionate method of achieving those aims. In other words, they will need to show that there is no less discriminatory alternative to compulsory retirement.

In both the Hampton and Seldon cases, the tribunal accepted that the compulsory retirement of workers who are not employees at age 65 amounted to direct age discrimination. Both cases therefore turned on the question of justification and whether the respective respondents could show that their policies of compulsory retirement amounted to proportionate means of achieving a legitimate aim or aims.

In Hampton the respondent argued that its policy of compulsory retirement of recorders (who are office holders rather than employees) at 65 was necessary to maintain a reasonable flow of new appointments and a reasonable flow of candidates for posts in full time judiciary. The tribunal accepted that these were legitimate aims. However, it did not accept that the policy was a proportionate means of achieving those aims. Instead it found that the Ministry of Justice had failed to produce any evidence that permitting recorders to continue to age 70 (the retirement age for most other judicial office holders) would affect its ability to produce sufficient suitable candidates for the judiciary. It also found that there were a number of other ways to ensure these aims such as reviewing case allocation and removing recorders who did not sit for the minimum number of days required to be eligible for judicial appointment.

Seldon concerned a partner in a law firm who was compulsorily retired at 65 pursuant to the partnership deed. In that case the tribunal held that the policy of compulsory retirement was objectively justified and therefore did not amount to unlawful age discrimination. On the facts of that case the tribunal found that three of the firm's stated aims were legitimate. These were

- ensuring that associates have the opportunity of partnership after a reasonable period as an associate

- facilitating the planning of the partnership and workforce by having a realistic expectation when vacancies will become available

- limiting the need to expel partners by way of performance around retirement age and thereby contributing to the supportive culture of the firm.

The tribunal then balanced the needs of the partnership against the effect of compulsory retirement and determined that compulsory retirement was a proportionate means of achieving these aims within the partnership and therefore objectively justified.

These decisions highlight the contrasting extent to which each case will turn on its own particular set of facts under the Employment Equality (Age) Regulations 2006. However, the decisions do contain some examples of helpful guidance of what may amount to legitimate aims and to what extent the means of achieving those aims are likely to be proportionate.

The decisions to date show that even when legitimate aims can be established it will be necessary for respondents to consider alternative ways of meeting these aims that are not discriminatory before they opt to discriminate on grounds of age.

It is understood that both these cases are being appealed and it is therefore hoped that the Employment Appeal Tribunal will provide some further guidance on what can amount to objective justification to assist employers with this difficult question. The question of what evidence is required to show justification will be an important area. In Seldon the tribunal relied on evidence from partners in relation to the importance of partnership for retaining associates and did not require the firm to produce objective evidence to support these assertions.

Christine Jenner is a partner in the employment department at Davies Arnold Cooper.