When I read a paper, I have to confess that I hardly ever read a full article unless I’m particularly interested in it. I’m more likely to scan the headlines and maybe the first couple of paragraphs before I move on.
So let’s look at the Seldon case from the point of view of someone with no particular interest in the subject. What would the headlines tell them?
Daily Mail: ‘You can be forced to retire aged 65: Landmark ruling says law firm was right to tell solicitor he must quit his job because of his age’
BBC Online: ‘Supreme Court ruling says employers can force retirement’
BBC Online: ‘Employers can force retirement, court ruling suggests’
Financial Times: ‘Appeal fails on forced retirement’
Daily Telegraph: ‘Firms win right to retire workers at 65’
The Guardian: ‘Age discrimination ruling allows employers to set retirement dates’
Of those, the only headline that correctly describes the position is from the Financial Times. It is undoubtedly true that an appeal has failed on forced retirement – so well done them. The others all make the story more interesting – and more straightforward – than it is. They give the impression that there is now some general right for employers to force employees to retire when of course it is much more complicated than that (mind you, fair play to the BBC for adding ‘suggests’ to the end of its headline – good try)
I don’t want to go into an analysis of the Seldon decision. I suspect I’ll be writing quite a lot about it in various places in the time to come and talking about it in employment law updates for the rest of the year. I’m going to be throughly fed up with Mr Seldon by the autumn and no doubt my clients will be too. If you’re keen, you can read the whole judgement here and the press summary here. There are also some excellent legal blogs on the decision from Laurie Anstis on Work/Life/Law and Lewis Silkin’s Age Discrimination info as well as a whole host of commentary and debate if you follow the #ukemplaw hashtag on Twitter. All good stuff.
The key point to get right about Seldon is that although forced retirement can in theory be justified, an employer will still have to show that retirement is justified in a particular case – and do that by reference to recognised legitimate objectives such as ‘intergenerational fairness’. Even if there is a legitimate aim being pursued the employer needs to show that retirement at the age in question is ‘proportionate’ and that issue has yet to be decided in Mr Seldon’s case – he hasn’t lost yet.
In reality, any employer that adopts a policy of forced retirement age is almost certain to get sued over it at some point and will have absolutely no guarantee of winning. it is a high risk strategy and only employers who feel they have a compelling case for retirement should even consider such an approach. For most employers and employees, forced retirement at a set age is a thing of the past.
Now to be fair, most of the press stories quoted above do make it clear that individual employers will still have a steep hill to climb in justifying forced retirement. You could pick fault here and there with the detail but there are lots of quotes from lawyers trying to explain the case in simple terms and emphasising that each case has to be judged on its own merits. Once you get past the headlines, I think the press have generally done a good job, all things considered.
However one assertion in one of the articles did strike me as odd. The Telegraph article quoted above has this paragraph:
Legal experts said the decision gave the go-ahead to firms to get rid of employees at 65, just months after the practice supposedly became unlawful.
My question for the Telegraph is this: which legal experts said that? Lots of lawyers have generously supplied the press with attributable quotes describing the effect of the judgement but I can’t find any that have said ‘this decision gives the go-ahead to firms to get rid of employees at 65’. That’s not surprising, of course, because the decision does no such thing.
Is it possible that these anonymous experts are not quoted directly because they don’t exist, but had to be invented to support a more ‘newsworthy’ proposition?
I’d propose as a general principle that when a position is ascribed to unnamed ‘legal experts’ what we are actually reading is a statement that the journalist was determined to use anyway, but couldn’t find a reputable lawyer to put his or her name to.
We could call this principle ‘Peacock’s law’
On the subject of my favourite journalist, we should not forget that the Supreme Court also gave judgement in Homer v Chief Constable West Yorkshire Police yesterday. This is a conceptually difficult case about the nature of indirect discrimination and I’m still trying to figure out whether or not I agree with what the Supreme Court has said (I bet Baroness Hale is on tenterhooks).
Louisa Peacock is one of the few journalists to have picked up on the case. Her article says this:
The Homer case could revolutionise job adverts by outlawing the terms “graduate” or “degree-qualified”, in much the same way that “enthusiastic” and “energetic” are words that are rarely used by employers for fear of being accused of looking for only younger staff.
I don’t want to get bogged down in this. Lets just say that none of that is remotely true – and leave it at that.