Two of cricket’s longest-serving umpires have taken the England and Wales Cricket Board (ECB) to an employment tribunal, claiming unfair dismissal and age discrimination.

Umpires Willey and Sharp were forced to retire by the ECB last year, as they were due to reach the traditional cricket retirement age for umpires, of 65, before the start of the 2015 season.

The national default retirement age of 65 was abolished in April 2011, and a dismissal based on a person's age (of 65 or otherwise) now amounts to unlawful direct age discrimination under the Equality Act 2010, unless the employer can objectively justify the decision or can establish that being below that age is an "occupational requirement". 

This has made it more difficult for employers to retire their employees – there is no longer a ‘safe’ age at which to dismiss someone on grounds of their age. Employers must instead identify a legitimate aim being pursued and show that the means used to pursue it are proportionate.

There have been a number of other sports cases, particularly in football, where employers have failed to meet these requirements. 

In Martin v Professional Game Match Officials an employment tribunal decided that a retirement age of 48 for football assistant referees was direct age discrimination that could not be justified as a proportionate means of achieving the legitimate aim of creating career progression opportunities. The tribunal concluded other means of achieving the employer's aim were available, which were less discriminatory. The employer in that case was also unable to explain why it applied a retirement age of 48 rather than any other age.

The more recent case of Conroy v Scottish Football Association, whilst principally being an employment status case, also grappled with these considerations. The referee was again successful.

In the current proceedings, the ECB is defending the claims, arguing that umpires should retire at the age of 65 because their reactions become too slow for the game and would experience increased difficulty in standing for long periods of time. The hearing has now concluded and the decision of the employment tribunal is awaited.

It is such general assumptions that employers should be careful to avoid.  Instead, employers should consider employees on a case-by-case basis or ensure that a standardised retirement age is capable of being objectively justified – perhaps by reference to medical / scientific analysis. Admittedly, it is easier for evidence to be obtained which demonstrates deterioration in performance with certain vocations (e.g. firefighters). Importantly, at least according to the press reports of the proceedings, the ECB has not produced any evidence that older umpires performed poorly. 

Employers should think carefully in seeking to continue to rely upon a certain ‘retirement’ age – and would be advised to consider whether there are other potentially fair reasons to dismiss, if and when problems do arise.