The UK Supreme Court’s landmark rulings in the Seldon and Homer cases doesn’t mean that employers can make employment decisions based on age warns Croner, the UK’s largest provider of workplace information, software and services.

“Both cases demonstrate that the use of age directly or indirectly will amount to age discrimination unless objectively justified,” Richard Smith, Employment Law Expert at Croner said on the cases.

“Seldon shows that it may be theoretically possible to justify a retirement age; but to do so will not be easy. The justification must be of measures that were appropriate, necessary and proportionate and if there are non-discriminatory measures that would achieve the same outcome this will undermine justification.

“So for example in Seldon the justification for a compulsory retirement of maintaining dignity by avoiding performance management of older workers may not succeed if there are alternative means such as fair procedures to achieve the same goal; or if there is no evidence to prove that this does allow younger workers to progress the case may fail on its facts.

“Croner advice is to avoid the use of age either directly or indirectly in making employment decisions. If this cannot be done then sound objective reasons must be in place to prevent successful claims. Firms would not be well advised to implement compulsory retirement ages but should manage older workers based on actual performance not assumptions based on age.”

By Daniel Hunter