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When is it time to stop judging? Age Discrimination and the Judiciary

by Tamar Burton

Facts

Mr White, a retired circuit judge, brought claims against the MoJ for age discrimination.

By an amendment, he added claims for breaches under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and an allegation that the decision not to appoint him to the position of deputy circuit judge after his retirement was an act of age discrimination. These two additional claims were subsequently dismissed on the basis that they were out of time.

The tribunal therefore only considered one issue: is the requirement for a judge to retire on his or her 70th birthday an act of age discrimination?

Argument

The Respondent relied on the exception to age discrimination found in s. 191 and Schedule 22 of the Equality Act 2010 (“EA 2010”). This provides that an employer will not contravene an age discrimination provision if it does anything it must do pursuant to a requirement of an enactment. By virtue of s. 212 EA 2010, this includes an act of Parliament. The specific requirement relied on by the Respondent is s. 26 of Judicial Pensions and Retirement Act 1993 (“JUPRA”).

Mr White put his argument in three ways:

  1. S.26 of JUPRA does not amount to a requirement for the purposes of Schedule 22 because it is not absolute as exceptions may be made;
  2. The government is the author and originator of the requirement of the enactment and so the Respondent is not entitled to take advantage of a requirement which it imposed upon itself (“the self-serving point”); and
  3. S. 26 JUPRA conflicts with the Equal Treatment Framework Directive 2000/78/EC and the enforcement of a retirement age of 70 cannot be justified so s. 26 JUPRA must be disapplied.

During the hearing, Mr White conceded that a compulsory retirement age was objectively justifiable in principle but that age should be 75 and not 70. His secondary position was that the age should be 72.

Decision

The judge held that Mr White’s complaint of age discrimination failed.

The judge found that s. 26 of JUPRA was “undoubtedly” a requirement for the purposes of Schedule 22 EA 2010. The fact that s. 26(5) and (6) of JUPRA allowed for an extension of a judge’s tenure did not mean that s. 26 was not compulsory.

The judge also gave Mr White’s second submission short shrift finding the self-serving submission ignored “both the constitutional and factual realities” of how law is made. The judge stressed that Schedule 22 EA 2010 applies equally to all those who constitute “employers” for the purposes of Part of EA 2010. The judge accepted the Respondent’s submission that governments “do not make law, they only promote it. Law is made by the Queen in Parliament.”

On the final ground of objective justification, evidence was heard on the history of the policy considerations for the compulsory retirement age. This issue was considered in detail during the development Constitutional Reform Act 2005 and in determining the retirement age for the Justices of the Supreme Court. The Respondent provided statistics to show that only about 35% of judges retire in their 69th year and Mr White accepted that the discriminatory impact of a retirement age of 70 was therefore not great.

The existence, and genuineness, of five policy objectives behind the compulsory retirement age of 70 were not in dispute. These legitimate aims for the purposes of Art 6(1) of the Directive were:

  1. Promoting and preserving judicial independence by having a single retirement age rather than individual decisions in each case;
  2. Preserving the dignity of the judiciary by avoiding the need for health and capacity assessments;
  3. Maintaining public confidence in the capacity and health in the judiciary;
  4. Workforce planning, namely ensuring that there is an appropriate number of judges at the necessary levels of seniority; and
  5. Sharing opportunity between the generations by balancing experienced judges’ need to continue in office against newer judges’ need for career progression.

The judge referenced Baroness Hale’s analysis in Seldon v Clarkson Wright and Jakes [2012] ICR 716 that in the justification of direct age discrimination, the aims of the measure must be social policy objectives.

In consideration whether the retirement age of 70 is reasonably necessary, the judge noted that Seldon was a case about a private employer (a law firm), while the facts of this case is about a national authority setting a national measure. In the latter case, there is a large measure of discretion open to the national authority (see Palacios de la Villa v Cortefiel Servicios SA [2009] ICR 1111).

Applying the social policy aims identified by Baroness Hale in Seldon, the judge found that there “could be no doubt” that the aims pursued by the Respondent were legitimate aims of social policy. He concluded overall that the “arguments in favour of a compulsory retirement age for all members of the judiciary are unanswerable.”

Comment

Ultimately Mr White was unable to show that there was any significant harm for a compulsory retirement age at 70. Despite the impact on him personally, there is no obligation on a respondent to justify the application of a policy to an individual, only its application as a whole.

In his consideration of the objective justification defence, the judge noted that the justification had been “thoroughly and regularly” considered by the government over the last 20 years. This was in contrast to some of the ex post facto defences offered by the Respondent in the judicial pension litigation to date, such as in O’Brien v MOJ [2013] ICR 499.

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