Seldon Case: a welcome, practical approach

Faith Dickson, partner and Head of Sackers' Employment Unit, comments:

Age discrimination is different

The Supreme Court decision in Seldon reinforces the idea that age discrimination is different from other forms of discrimination.  The same rule can benefit us at one age, and be against us at another, and this "inter-generational fairness" can be a legitimate business aim.

Whether a retirement date of 65 was in fact a proportionate means of achieving that aim in Mr Seldon's case has gone back to the Employment Tribunal to decide.

A welcome, practical approach

However, the Supreme Court has expressed a strong view that a rule can have a legitimate social aim for age discrimination purposes even though the policy benefits the employer's business.  It recognises businesses are "not a social service", and even though a rule may be to an employer's advantage, this does not preclude there being a "public interest" in achieving the aim.

So, just because an employer benefits from people retiring at a specified age, that does not mean it can't take advantage of fixed retirement ages where they have the aim of sharing out employment opportunities fairly between the generations.

This is a welcome, practical approach to justifying age discrimination.

No immediate impact to pension schemes

I doubt the decision will have an immediate, dramatic impact on occupational pension schemes, which already have the ability to set an age at which people become entitled to benefits.  But it might open up arguments for how long, or what type of benefits need to be continued if people work beyond their normal retirement age.

For example, it arguably raises the question whether inter-generational fairness justifies stopping DB benefits at normal retirement age if new joiners only have access to DC.

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