On 13 March 2015 the London Central Employment Tribunal gave judgment in a test case about the right of the England and Wales Cricket Board (‘EWCB’) to dismiss first class umpires (‘FCUs’) at 65.
In Willey and Sharpe v England and Wales Cricket Board it rejected the idea that the EWCB could rely on its stated aim of avoiding disputes about potentially failing capability and so ‘preserving the dignity’ of the umpires, but found that their dismissals were not unlawful age discrimination because they were a justified means of pursuing the aims of bringing on new talent and succession planning. It went on to find that the Claimants, Peter Willey and George Sharpe, had not been unfairly dismissed, although it was critical of the procedures followed by the EWCB.
As with any compulsory retirement age, the starting-point was that the policy was prima facie discriminatory and required justification. The Tribunal had no difficulty in finding that the EWCB was justified in imposing a compulsory retirement age, although it found the question of what that age should be more difficult.
What clearly struck the Tribunal was the fact that the number of vacancies for FCUs was so small and that that no one had ever known a FCU to retire before the compulsory retirement age.
‘A small group of 25 first class umpires sit at the top of the tree. They earn well, have secure jobs and an interesting and absorbing way of life involved in the sport they love. Waiting in the wings are a number of talented umpires keen to progress to what must be a dream job, the next best to being a first class player.’
A fixed retirement age, the Tribunal found, achieved certainty and predictability in securing inter-generational fairness and orderly succession planning; it was a proportionate means of achieving that legitimate aim. The Tribunal rejected arguments advanced on the Claimants’ behalf that the same aim could be achieved by other means. They held, for example, that a system which achieved an appropriate turnover by way of a league table which identified the two worst performing FCUs, who would then be relegated to a lesser role, would inevitably cause ‘bad feeling and competition between the umpires, who currently work collaboratively’.
In considering whether dismissal at the particular age of 65 was justified, the Tribunal found that, for the time being at least, it was. It was the state pension age of these two claimants, it was the age they expected to work to when they signed their contracts, it gave rise to a reasonable period of service and it was widely regarded as appropriate amongst FCUs. However, they expressed the view that within a couple of years the fixed age may well have to increase to reflect the rise in the state pension age and the fact that, if the average starting age increased, the average career expectancy might be too short to be regarded as fair.
In a sensitive Judgment the Tribunal emphasised that there was never any question of poor performance on the part of the Claimants: on the contrary, they were ‘at the top of their profession and were not showing any signs of deteriorating capability’.
The EWCB’s position appears to have been strengthened by the fact that it could point to a written policy which articulated, in advance and in detail, its justification for the introduction of a policy which uniquely disadvantaged FCUs (it did not apply to other employees). Strikingly, the terms of that policy closely mirrored aims set out as potentially legitimate in the leading Supreme Court case on age discrimination: Seldon v Clarkson, Wright & Jakes  ICR 716).
Cloisters’ barrister Declan O’Dempsey appeared for the Claimants, instructed by Prospect Union.