Legal Recruitment from Ten-Percent Legal

Friday, September 26, 2008

ECJ ruling on Age Discrimination

It’s been reported that the recommendation at the first level of the ECJ has ruled that automatic ages for retirement are not direct age discrimination.

A case was being brought to say that the idea of forcing someone to retire at a particular age was in breach of age discrimination regulations, from memory I think this was a partner of a large London law firm who was bringing the case. I understand that there are a further 125 cases of a similar nature that are waiting on this decision, no doubt the claimants will be a little disappointed by this outcome, which although is not yet finalised is fairly likely to be followed through by the court when it makes its decision.

There have been calls by various trade bodies to legislate on this ground either in favour of specifying an operation in terms of pensions or to remove it entirely as to allow flexible working.

There have been suggestions that it is a great relief that the automatic age retiring requirement is being allowed to stop in as it means that if there is the constant generating of new blood into companies and the prevention of senior employees being able to stay at work for a further 20 years without worries that they will lose their job on the basis of their age.

This is fairly common in the United States where senior members of companies can sometimes stay in their post until they’re in their nineties, as there is no restriction on them doing so and the companies are unable to get rid of them. Obviously it is not always the case that companies do want to get rid of them, and there is no legislation or usual contractual stipulating in the States to prevent them stopping in their posts.

Personally I think it is a good thing that there is an automatic retirement age as in larger companies it does allow the continual flow of new employees and promotion prospects. Only this week I was talking to a Lawyer who at three years PQE has no chance of any promotion in his current firm for at least another ten years because there are three very senior partners all above him in the same department, and none of them show any signs of wanting to retire. But you can already see that that particular firm are going to lose a very able member of staff simply because the top end is not leaving when it ought too, thus allowing the movement from the bottom end. Quite a lot of the people these days like to keep their hands in, and we get a lot of applications from Solicitors in their late sixties and early seventies wanting to do locum work or part-time work.

Where this is the case, it can allow firms to get a lot of experience at a fairly low cost, but it can also prevent more junior members of staff from getting promotions when they ought to be having them. Jonathan Fagan is Managing Director of Ten-Percent Legal Recruitment ( He regularly writes and commentates on the legal profession and any legal issues that arise on a daily basis.

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