Age Concern retirement case - Day two of the Heyday hearing

One of the Government's arguments for allowing mandatory retirement is that it prevents older workers from the indignity of being subject to performance management and possibly dismissal on grounds of capability at the end of their career. Robin Allen QC, representing Age Concern and Help the Aged, argued that as the default retirement age covers all workers, including the majority who have no performance issues at age 65, it has the opposite effect for most people. It does nothing for the dignity of someone who is capable of continuing in work but who is forced to retire simply because they are 65.

Following on from this, Age Concern argues that the default retirement age is based on a stereotypical assumption that performance declines with age, which isn't borne out by the evidence. The Government's own research into labour market evidence showed that, except in a few jobs, work performance does not deteriorate with age at least until age 70, and there are so few people in work above age 70 that there is little evidence to draw conclusions from above that age. (If you're interested in this you can download the research report (PDF format, 808K) from the BIS website).

Robin Allen QC accepted that at age 95 or 100, age might be a good proxy for performance (it's fair to expect a 100 year old not to perform as well in a job as someone younger), but at age 65 he argued, age is a very poor proxy for capability in most jobs.

The Government argued that the justification for the default retirement age is not based on stereotypical assumptions about age, but on the need for employers to be able to plan their workforces and to prevent job-blocking. Dinah Rose QC representing the Government raised the idea of generational fairness and argued that age discrimination is different from other forms of discrimination, such as race or sex discrimination, because age is a spectrum rather than a fixed characteristic, so as you get older you move into a different age group with different entitlements. This is the argument that older workers, who have had a fair crack of the whip, should step aside to give opportunities to younger workers.

There was also a lot of legal argument about the test for justification of direct discrimination under EU law, but you'll have to wait for the judgment in autumn if you want to read the detail of that. One thing that you probably won't learn from the case report (so it's a good job I was there to bring you this) is that Lord Lester of Herne Hill QC (who is representing the Equality and Human Rights Commission) uses a Winnie the Pooh lever arch file for his papers.

You can read a report of the first day of the hearing on the Telegraph website.