indirect discrimination related to retirement is unlawful age discrimination

Posted on May 18, 2012 by Martin Malone

Another important age discrimination and retirement case this month is Homer v West Yorks Police, which concerned a senior police officer who became a legal adviser at the Police National Legal Database after retiring from the police aged 51. At the time he joined, there was no requirement for advisers to have a law degree, but the PNLD later introduced a new grading structure, which required a degree for promotion to the top grade, with the intention of improving recruitment and retention. At this point, at the age of 62, Mr Homer was allocated to the second highest grade. He made a complaint of indirect discrimination because he would be unable to complete a law degree before his planned retirement age of 65, and so could not get promotion. He failed in both the Employment Appeal Tribunal and in the Court of Appeal, because it was considered that the reason for the discrimination was not his age, but his impending retirement.

The Supreme Court rejected this approach: it did not make sense to compare those approaching retirement with those leaving for other reasons, over which they had a choice, with those faced with a compulsory retirement age, nor was it realistic to treat retirement as unrelated to age. Continue reading →

justification for direct age discrimination must be related to the general public interest

Posted on May 18, 2012 by Martin Malone

This month’s biggest employment law news stories have to be the Supreme Court’s two decisions on age discrimination in Seldon v Clarkson Wright & Jakes and Homer v West Yorks Police. Both give useful guidance about how cases on age discrimination will be considered from now on – but both leave questions to be considered further.

Seldon is a case relating to membership of a professional partnership, but the principles discussed will apply equally in employment cases. Put briefly, Mr Seldon, senior partner in a law firm, challenged a rule in in the partnership deed providing for compulsory retirement at age 65 as direct age discrimination. The partnership defended the rule on the basis that it was justified, that is, that the rule was a proportionate means of achieving a legitimate aim. Three of the reasons put forward as legitimate aims were accepted by the employment tribunal:

1 – retention of associates by ensuring that they have a chance to become partners within a reasonable time;
2 – facilitating workforce planning; and
3 – promoting a supportive culture by minimising the need to use performance procedures to expel partners.

At both Employment Appeal Tribunal and Court of Appeal levels it was considered that the mandatory retirement age was justified. Mr Seldon appealed to the Supreme Court, whose judgment surveyed the relevant European case law and drew out some general principles from it.

Continue reading →

employee or self-employed

Posted on August 14, 2011 by Martin Malone

Many employment law rights (such as unfair dismissal and statutory redundancy pay) are restricted to “employees” as defined. It is usually obvious whether a person has a contract of employment (i.e. a contract of service between an employer and an employee) or a contract for services (i.e. made by an employer with an independent contractor/self-employed person). Perhaps a simple and straightforward example of the difference is the contrast between the jobs of chauffeur and taxi-driver.

In some ways, the debate over whether someone is an employee (or worker) or self-employed has perhaps become something of an “old chestnut”. Yet no matter how many cases give guidance on how to approach the question, grey areas remain. One such common grey area has been the extent to which any written contract should provide the answer. Many outside the law would be surprised to learn that the contract is, in itself, by no means determinative. Continue reading →

expert witnesses

Posted on May 20, 2011 by Martin Malone

The Supreme Court ruled on 30 March 2011 that (save in respect of defamation) it is time to bring to an end the immunity from suit traditionally extended to expert witnesses. So from now on if an expert witness is negligent in giving evidence in a trial it will be open to a person who has suffered as a result to sue the expert witness.

Although the case did not concern an employment matter, the ruling is, of course, of general application to all areas of litigation, including employment law.

In the case, a Mr Wynne Jones had been involved in a car accident. A clinical psychologist, Ms Kaney, diagnosed PTSD (post traumatic stress disorder). Proceedings were issued, liability was agreed, and the only question remaining was the level of damages. A consultant psychiatrist then examined Mr Jones and concluded that he was exaggerating his symptoms. On the order of the Court, the two experts produced a joint report, in which Ms Kaney now indicated that Mr Jones had misled her, and that he did not in fact suffer PTSD.

This, of course, damaged Mr Jones’ claim and he had to settle for less than he had anticipated.

Mr Jones sued Ms Kaney for negligence. She sought a strike out which the High Court granted, holding that in accordance with established case law it was bound to rule that, as an expert witness, she had immunity from such a claim in connection with preparing a joint statement for trial purposes.

Mr Jones appealed directly to the Supreme Court. He won by a 5-2 majority.

The Supreme Court concluded that the original rationale behind the immunity – concern that, in breach of his duty to the court, an expert witness might be reluctant to give evidence contrary to his client’s interest through fear of being sued – no longer applied. There was no conflict between the duty that the expert had to provide services to his client with reasonable skill and care and the duty he owed to the court. The same immunity used to apply, for similar reasons, to advocates and its removal in 2001 had not diminished the readiness of advocates to perform their duty. No evidence suggested that the immunity was necessary to secure an “adequate supply of expert witnesses”. It was time to remove it.

Any readers of this note intending to use the services of expert witnesses in a court or tribunal should take note of this new ruling (the case is Jones v Kaney [2011] UKSC 13, Supreme Court on 30 March 2011).