Last month, Peter Willey and George Sharpe, two former leading first class cricket umpires, brought employment tribunal claims when they were forced to retire from their roles by the English Cricket Board (‘’ECB’’). Recognised by players, supporters and fellow umpires alike as two of the leading umpires in the English game, and boasting excellent performance appraisals from the 2014 season, much of the cricketing fraternity could not understand why two men clearly recognised as being at the top of their profession should be forced to move aside.
Under the Equality Act 2010, it is unlawful for an employer ("A") to discriminate directly by treating someone ("B") less favourably than others because of age. However, there will be no direct age discrimination where the employer can show objective justification for its actions. In other words, A would need to demonstrate that its treatment of B represents a proportionate means of achieving a legitimate aim.
The two umpires were themselves former first class cricketers. They began working for the ECB’s predecessor back in 1992. Their employment contracts, which pre-dated age discrimination laws in the UK, provided for a compulsory retirement age of 65. The statutory default retirement age of 65 was abolished in 2010 and many employers took the decision not to have a contractual retirement age. However, the ECB introduced a handbook containing a policy that first class cricket umpires would be retired at 65 (but not other employees). The ECB employs a very small group of approximately 25 cricket umpires.
Approximately one fifth of employers operate an employer justified retirement age (‘’EJRA’’). Maintenance of an EJRA needs to be justified by a legitimate business case. Until 2010, employers were legally entitled to force someone to retire at 65 without fear of any claims for age discrimination or unfair dismissal provided the correct procedure was followed; since then, a forced retirement will be lawful only if the EJRA is justified.
The two umpires worked until they were forced to retire in September 2014 at the end of the English cricket season. The ECB recognised that, despite their age and mandatory retirement, the two umpires were at the top of their profession and ‘’were not showing any signs of deteriorating capability’’.
The ECB’s policy in respect of its umpires is extensive and detailed. Historically, the content of this policy had been discussed with these two umpires together with the other first class cricket umpires employed by the ECB. Importantly, the ECB’s policy provides a number of non-exhaustive reasons for why the ECB believes the default retirement age of 65 for umpires is justified. These reasons include:
- Inter-generational fairness and the need to ensure that succession opportunities remain attractive to former first class cricketers who are deemed best placed to be successful in the role of a cricket umpire;
- A fixed retirement age ensures realistic expectation of when opportunities will arise to become an umpire and facilitates succession planning;
- The potential loss of dignity to cricket umpires in ending their careers for performance reasons as opposed to retiring with their ‘’heads held high’’; and
- Succession planning is a means to providing the best possible service to the game of cricket in ensuring that the standards of umpiring do not stagnate.
The ECB’s policy reserves the right for umpires to submit a request to continue working beyond 65. The umpires did submit such requests, but they were refused by the ECB and the subsequent appeals of the umpires were unsuccessful. The Tribunal found that the umpires were, because of their age, treated less favourably than the ECB would treat individuals of a different, lower, age group. The question for the Tribunal to then consider was whether the ECB could show that this treatment was a proportionate means of achieving the legitimate aims of (i) intergenerational fairness and succession planning and (ii) the preservation of dignity.
Seldon v Clarkson Wright & Jakes
The leading case in this area is Seldon v Clarkson Wright & Jakes. This was a long running case concerning the mandatory retirement age of 65 for partners in a law firm, and it provided that a forced retirement age of 65 was a proportionate means of achieving the legitimate aims of (i) workforce planning (ii) retaining associates and (iii) contributing to a congenial and supportive workplace culture by limiting performance management.
Back to the cricket field...
The Tribunal looked at whether the accepted legitimate aims of (i) intergenerational fairness/ succession planning and (ii) preservation of dignity were proportionate. Intergenerational Fairness
The Tribunal found that it was appropriate and reasonably necessary to pursue this aim by having a fixed retirement age as this ‘’achieves a certainty and predictability; there is no point in having a vacancy unless it is predictable over a number of years this allowing aspiring cricket umpires to plan and to retain hope of achieving their goal within a set number of years’’. Although the Tribunal found that the fixed age of 65 was justified for the time being as, amongst other reasons, it represents the state pension age and it was the age the umpires expected to work to when they signed their contracts, the Tribunal did comment that the fixed age might have to increase in future years to reflect the rise of the state pension age.
Although a compulsory retirement age was found to be reasonably necessary to preserve dignity, an age of 65 was found to be too low. The Tribunal provided that they have been shown ‘’no medical reason...why 65 year olds in general need to be saved from themselves by being dismissed as cricket umpires’’. Further, no evidence was provided of a pattern that cricket umpires start to make mistakes as they enter their 60’s and, taking these factors into account, the Tribunal determined that it was not reasonably necessary to have a specific retirement age of 65 in order to preserve the dignity of cricket umpires.
Should employers have a fixed retirement age?
The majority of employers do not have a fixed retirement age. One result of this is that it gives flexibility to employees to run their own lives, particularly as pensions changes mean employees may feel unable to retire if their pension will not provide the level of income they require.
However, employers should think about whether there are any legitimate aims within their particular organisation. One obvious advantage of having a fixed retirement age, which can be objectively justified on business grounds, is the reduced need to performance manage long-serving and valued employees when they reach an age at which their performance begins to slowly deteriorate over time.
Have there been other legitimate aims?
In Martin and others v Professional Game Match Officials Limited, the aim of creating a career route was found to be legitimate within the context of a retirement age of 48 for a football referee. However, this was not found to be proportionate since less discriminatory means (for example fitness and competency tests) could have been introduced to remove the referees with the lowest scores.
In Baker v National Air Traffic Services Limited , four legitimate aims of (i) a high success rate in training (ii) providing an adequate pool of air traffic controllers (iii) securing a reasonable period of service post-qualification and (iv) safety were found in respect of an absolute age limit of 36 on applicants training as air traffic controllers. However, the age of 36 was not found to be proportionate since ‘’success could not be predicted by age’’ and there was no evidence to suggest that safety was compromised by older recruits.
In White v Ministry of Justice, legitimate aims of (i) promoting and preserving judicial independence and (ii) inter-generational fairness and workforce planning were found within the context of a retirement age of 70 for circuit judges. These aims were found to be proportionate with the particular point that a higher retirement age would have a negative impact on recruitment since older judges would stay in office not permitting younger judges with new ideas to come through the ranks.
If you have a fixed retirement policy...
Where an employer has a fixed retirement age, a clear procedure should be set out in the policy. Such a policy should look to deal with the following:
- Clearly set out the business reasons for the policy;
- Indicate that the policy is designed to provide fair and equal treatment to all employees and to ensure they are prepared for retirement and are able to retire with dignity;
- Fix a prescribed retirement age;
- Invite the employee to discuss any relevant issues to the retirement 6 – 12 months beforehand (e.g. handover, whether the employee would like make a request to work beyond retirement or do reduced hours in a different capacity leading up to retirement); and
- Indicate whether working beyond a fixed retirement age might have any implications on pension benefits.
If you don’t have a fixed retirement policy...
Where no fixed retirement age is in place, a policy should look to cover the following:
- A kind request for the employer to be given as much notice as possible in relation to retirement plans;
- An indication that discussions around future plans might take place (either during an annual appraisal or on an informal basis);
- If there are any performance or ill-health concerns, such matters would be dealt with under the usual policies.
Tips for employers with mandatory retirement ages
Evidence – it is key for an employer to be able to readily demonstrate that a fixed retirement age is a proportionate means of achieving a legitimate aim relevant to its particular organisation and, further, that the fixed retirement age is based on the specific needs of the employer. A tailored approach, in which internal discussions of an employer’s legitimate aims and rationale for selecting a prescribed age are documented, should provide further weight to discharging the burden of objective justification.
Policy – the fact that the ECB had in place a well drafted and detailed retirement policy went a long way to justifying the reasons for why it requires umpires to retire at 65. Other employees within the ECB are not disadvantaged by the policy. Of material importance is the fact that there are only 25 cricket umpires employed by the ECB; if there was a greater pool of umpires and more opportunities to climb the umpiring ranks, the ECB would undoubtedly have found it more difficult to rely on the intergenerational fairness and succession planning argument.
Discussion – meetings should be held with employees to discuss their needs when retirement is approaching and the possibility of such meetings detailed in the policy.
Review – what works for one employer may not work for another. Over time, an employer’s needs may change and what was once justifiable within a particular organisation is no longer lawful. Regularly review the your aims and consider whether a mandatory retirement age is necessary and proportionate to achieve these aims.