Imagine trying to justify your compulsory retirement age on the basis that it represented roughly the point where your employees were performing at their best. Impossible, right?  

Not so, said the London Central Employment Tribunal last month in White –v- Ministry of Justice. Hearing the claim of a Circuit Judge that his compulsory retirement at 70 was age discrimination, the Tribunal had to consider whether the obligation to go at that age (clearly discriminatory in its effect) could be justified and so lawful.  The objectives relied upon by the Ministry of Justice in support of the fixed retirement age included “maintaining public confidence in the capacity of the judiciary”.    

Mr White agreed that this was a legitimate objective, but argued that since it would be served equally well by a retirement age of 72 or 75, compulsory retirement at 70 was not justifiable.  As arguments go this was pretty much doomed from the start by the final decision in Seldon http://www.employmentlawworldview.com/age-shall-not-weary-him-seldon-age-discrimination-claim-marches-on/ that any year in a reasonable range would be justifiable, and was put beyond retrieval by statistics showing that some 90% of Judges retired voluntarily before they reached 70 anyway.   Nonetheless, the Tribunal went further, shining a bright light into some of the darker corners of the judicial removal process, and liking what it saw.   

A Circuit Judge can only be removed pre-70 on grounds of misconduct or incapacity due to health, it found.  There is no mechanism for removing him/her on performance grounds falling short of that, not even the ability which an ordinary employer would have to dismiss unfairly an employee who had gone off the boil intellectually in some important but intangible way.  Any attempt to remove Judges on those limited grounds, successful or not, would surely be a gift to those considering appeals against their recent decisions.   

In addition, by reason of a catastrophically unfortunate typographical error in the decision, the Tribunal found that it was very much in the “pubic interest… that Judges should not be perceived by the public as “past it” because of mere antiquity, nor to be still in post while actually being “past it” but declining to acknowledge the fact”.  

So there you have it – 70 is enforceable as a retirement age precisely because at that age the great majority of Judges are still performing at their peak.   

This decision was obviously fact-specific to a large extent but is nonetheless relevant on a broader basis for its reinforcement of the Seldon principle that it will not be discriminatory to pick one from a band of ages which serve your objectives in having a fixed retirement age merely because a later one would do so just as well.