It has been quite a week for age discrimination, writes Paul Lewis.
First, two judges in the UK took the Ministry of Justice, to an employment tribunal for forcing them to retire at 70.
Next the UK’s head spy said he wanted his agents to be able to work to any age so he could keep their valuable expertise.
But then the European Court of Justice said member states could specify an age at which employers could force their staff to retire.
All three events were about whether you could have a fixed retirement age under laws which ban discrimination at work on grounds of age. After all, if someone is told they must leave their job because they have reached 65 what is that but blatant age discrimination?
Certainly that seems to have been the reasoning of Judges Jeremy Varcoe and Stuart Sutcliffe both of whom were asked to leave the bench at the age of 70. Both asked if they could stay on. But to both the Ministry of Justice said ‘no’. Judge Varcoe said he wanted to continue to give the benefit of his ‘unusual skill of understanding the background’ of many applicants to the Immigration Appeals Tribunal on which he sat.
A similar point was made by Britain’s head spy, Sir John Scarlett. He is the boss of the Secret Intelligence Service popularly known as MI6. He told a committee of MPs that he wanted his staff (aka spies) to be allowed to work longer than others in the civil service because, as the official record says, “We need to retain staff beyond [age removed] we need their experience.”
The existence of MI6 used to be denied. The name of its boss used to be classified. At one time publishing his photo could land you in jail. No longer. But the age at which MI6 officers (aka spies) normally retire remains a state secret!
Within days of those two events the European Court of Justice ruled that the British Government can allow UK firms to fix a retirement age. But the Government must show that it is doing so in the interests of a social policy objective relating to employment or the labour market. And the Court warns the Government that it has the “burden of establishing to a high standard of proof the legitimacy of the aim relied on as a justification”.
The case now goes back to the High Court in London to see if the Government has achieved that high standard. With spies watching and judges weighing the evidence, it has a tough job.
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