Newsletter April 2012


On the London buses principle, two highly significant Supreme Court cases were reported in April concerning age discrimination.

The one concerning former law firm partner Leslie Seldon has attracted the most attention. He was forced to retire from his firm at 65 and has been battling his way through the courts to establish that that was unjustifiable and therefore unlawful.

Whilst he retired in the days when it was permissible to ask employees to leave at the default retirement age of 65, this was irrelevant to Mr Seldon as he was a partner to whom those rules and procedures did not apply. So if his forced retirement was lawful it had to be justified, much like any compulsory retirement age for employees would have to be justified now that the default retirement age rules have gone. Hence the interest.

I explain the outcome of the case below, but the short of it is that Mr Seldon was knocked back by the Supreme Court on the basis that factors behind the firm's decision were capable of justifying the forced retirement.

Reactions to the ruling have been differently spun. On the one hand there are those highlighting that there can be circumstances in which a forced retirement age is lawful - meaning a possible return of the default retirement age of 65? Others have focussed on the limits of the potential justifications, suggesting most employee situations will struggle to come within them. I am in the latter camp: I do not think this decision opens the door to a general policy of forced retirement at 65 or any other age for that matter. What it may allow is a compulsory retirement age in specific circumstances for people occupying senior positions such as, well, partners in law firms.

Darryl Evans
T: +44 (0)7771 725341

Justifying compulsory retirement at 65

Mr Seldon, a partner in solicitors' firm Clarkson Wright & Jakes, had to retire when he turned 65. He claimed this was unlawful age discrimination.

The Supreme Court held that the compulsory retirement age contained in the firm's deed of partnership was a directly discriminatory measure. Like indirect discrimination in other areas (such as race or gender) this form of discrimination is lawful, however, if it can be justified as a proportionate means of achieving a legitimate aim.

The Court said that in the case of direct age discrimination justification needed to be based on a legitimate social policy / public interest aim. (It distinguished this from justification for indirect discrimination which could be based on reasons specific to the employer.) Staff retention, workforce planning and limiting the need to expel partners under performance management processes fell within this, and specifically the European Court social policy objectives of inter-generational fairness and dignity.

The case is now back with the Employment Tribunal to decide whether the selection of the specific age of 65 was a proportionate means of achieving those aims in this particular business. (Seldon v Clarkson Wright and Jakes 2012 UKSC 16.)

Retirement is age related

In Homer v Chief Constable of West Yorkshire Police (2012 UKSC 15) the nature of the age discrimination which the Supreme Court had to consider was rather different.

Mr Homer sought a promotion at age 62, but his hopes were thwarted because one of the requirements for him to advance to the next grade was that he held a law degree. The only way he could achieve this was to do a part-time law degree alongside his job - except that that would have taken four years by which time he would have been required to retire (the default retirement age of 65 had not been removed at this time).

He said that this discriminated against him on account of his age. Rather bizarrely, the Employment Appeals Tribunal (EAT) and the Court of Appeal said that it was not his age but his impending retirement which blocked him. The Supreme Court put things right: his retirement was because of his age, not a separate reason.

It has remained unclear to me throughout this case why he did not take the more generic line that someone of his age was much less likely to have a law degree than a younger person - what proportion of the population went to university in the late 1960s? Surely for that reason alone there was indirect discrimination against older workers requiring justification.

No service provision change where activities done differently

The EAT has added to the line of cases that the TUPE service provision change rules do not apply when the service is conducted in a fundamentally or essentially different manner following the changeover.

Johnson Controls provided a taxi administration service for United Kingdom Atomic Energy Authority, which decided to terminate this arrangement. It took the activity of booking taxis in-house and, instead of using a taxi service administrator, decided its secretaries could book taxis directly with taxi firms. Consequently, booking taxis no longer existed as a centralised service.

The services carried out after the change were regarded as essentially different from those carried out before and there was no TUPE transfer under which the employee in the role of taxi administrator moved across to the Authority. (Johnson Controls v UK Atomic Energy Authority UKEAT/0041/12).

When to start collective redundancy consultation

The Advocate General, legal adviser to the European Court of Justice, has given his opinion in United States of America v Nolan (C-583/10) on when collective redundancy consultation must start.

In his view, that is when a strategic or commercial decision is taken which compels the employer to contemplate or to plan collective redundancies. This suggests underlying commercial decisions can be made, rather than merely proposed, before consultation starts.

I wonder, though, whether this is a distinction which exists neatly on paper but not in practice. If the commercial decision is to close a factory, for example, to what extent can the resulting redundancies be merely 'contemplated' or 'planned' - haven't they in effect been decided too? It will be interesting to see what the ECJ makes of this in its decision.

Communicating resignation

In Horwood v Lincolnshire County Council (UKEAT/0462/11) the EAT has held that the effective date of termination of an employee's employment was the date that her letter of resignation was received and opened at the Council's offices. The Council's response stating that her resignation would 'commence' a few days later had no legal effect. When the decision to leave is that of the employee, the date of termination is when the employee communicates his or her decision in clear terms.

The essentially repeats the principle set out in another recent case: that an employee's termination did not take effect until she read her dismissal letter, even though it was several days after it was received at her home address.

When dismissing someone it is anyway always preferable to carry out the deed in person, telling the employee verbally the date on which their dismissal will take effect, and then confirm it in writing.

Disclosure of employment information to unsuccessful job applicant

The European Court of Justice has held that EU law does not require an employer facing a discrimination claim from an unsuccessful job applicant to disclose information on the successful candidate. However, such a refusal may be taken into account when deciding whether direct or indirect discrimination may be inferred, which could then place the onus on the employer to prove an absence of discrimination.

In Meister v Speech Design Carrier Systems GmbH (C-415/10 ECJ) a German company advertised for an 'experienced software developer'. Ms Meister, a Russian, applied but was rejected without an interview. When the job was re-advertised shortly afterwards she reapplied but again was rejected without an interview or being told why she was unsuccessful.

She claimed discrimination on the grounds of her gender, age and ethnic origin. She asked for the details of the person who was hired so that she could prove that she was more qualified than him or her. The failure of the company to give them was not unlawful in itself, said the ECJ, but that does not prevent an inference of discrimination being raised, meaning the company may still have to demonstrate there was no discrimination involved.

Two racist comments - one outcome

In Moxam v Visible Changes Ltd (UKEAT/0267/11) an employee born in the United Kingdom to Jamaican parents made a number of complaints to the Employment Tribunal, including as a result of extremely derogatory remarks she heard colleagues making about immigrants and black men. The EAT held that the term 'immigrant' refers to a racial group, and so the employee succeeded in her claim that she had been subject to race discrimination, even though she was UK born.

Also successful was the employee in Royal Bank of Scotland plc v Morris (UKEAT/0436/10) when his complaint about his manager was categorised by a senior manager as an act of race discrimination and appeared on his personnel record, albeit possibly as a quote from the employee himself, as 'playing the race card'. The senior manager's comment was demeaning and based on a stereotype: he would not have treated a white employee complaining about a black colleague in the same way.

Facebook trouble

Mr Teggart posted a number of obscene comments about a female co-worker on Facebook, one of which mentioned the name of his employer. He was dismissed for breaching the company's policies on harassment and unwelcome sexual behaviour and for bringing the company into serious disrepute.

The Employment Tribunal dismissed his claim, rejecting his argument that he had a right to privacy under Article 8 of the European Convention of Human Rights. When he posted his comments on his Facebook pages he had abandoned any right to consider his comments as being private. (Teggart v TeleTech UK Ltd UK NIIT 00704/11).

There was a similar result in Crisp v Apple Retail Ltd (ET/1500258/11), where it was held that even though the employee had set his private settings properly, he could not have had any expectation of privacy due to the number of 'friends' who had access to his 'private' postings. Ironically, it was one of those 'friends' who reported him.

Reasonable adjustments - part time work for full time pay

The EAT in Newcastle Upon Tyne Hospitals NHS Foundation Trust v Bagley (UKEAT/0412/11) has decided that it was not necessary for the Trust to pay a disabled employee her normal full time wages where she was only able to work part time. The employee's claim that this was a required reasonable
adjustment failed.

This is consistent with the long-established principle that it is usually not a reasonable adjustment to continue paying sick pay to an employee who remains off work due to a disability, but whose company sick pay has expired.

An employer should nonetheless consider allowing an employee to return to work part time on full pay as a temporary measure, and this may well be a reasonable adjustment, depending on the resources of the employer.

Diamond Jubilee

There's a certain Big Anniversary coming up, with a resultant extra public holiday on Tuesday 5th June. Acas has published guidance for employers to help them plan for the holiday.

Acas recommends that employers plan ahead to avoid last minute leave request clashes or short-term absences and handle requests for time off as fairly and consistently as possible.

There is no statutory right to public holidays so employees are only entitled to take such days off if their contract of employment entitles them to do so. Even then, it may be that your contracts only entitle your employees to the usual eight public holidays in each year. If your contracts state that they are entitled to all public holidays, then you will need to allow this extra holiday as paid time off. If your contracts state otherwise, then the employees are not entitled to the day off with pay unless they take it our of their holiday entitlement, or you decide to allow them an extra paid day's holiday.

The information and any commentary contained in this newsletter are for general information purposes only and do not constitute legal or any other type of professional advice. Darryl Evans and Evans Employment Law Limited do not accept any and, to the extent permitted by law, exclude all, liability to any person for any loss which may arise from relying upon or otherwise using the information contained in this newsletter. If you have a particular query or issue you are strongly advised to obtain specific, personal advice and not to rely on the information or comments in this newsletter.

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