Last week the Supreme Court in Seldon v Clarkson Wright and Jakes decided that the forced retirement of a law firm partner was justified but referred the question of whether 65 was the appropriate age back to the tribunal.  At the same time, the Supreme Court heard another age discrimination case, Homer v Chief Constable of West Yorkshire Police, and decided that a 61 year old employee may have suffered indirect discrimination when he was rejected for a top salary grade because he did not have a law degree and could not complete it before retiring.

The EAT and Court of Appeal had decided that the disadvantage suffered was because of the fact that the employee was nearing retirement age, not because of his age.  The Supreme Court disagreed; the disadvantage was one suffered by a particular age group for a reason related to their age, and this could not be equated with a similar disadvantage suffered by others for a reason not related to age. 

As in Seldon, the issue of justification was sent back to the tribunal.  Although there was no dispute that the recruitment and retention of staff of the appropriate calibre was a legitimate aim, it was necessary to go further and ask whether applying the law degree criterion to existing employees seeking promotion was "proportionate" - in other words, appropriate and necessary.  This would depend, among other things, on whether non-discriminatory alternatives were available.

Incidentally, although the claimant did not make this point, in general, requiring a degree on recruitment or for promotion will always be prone to challenge on age discrimination grounds, as it is generally accepted that significantly more younger than older employees will have a degree.