Employment law changes: April 2012

Monday, April 30th, 2012 - Job Advertisement, Legal

Employment law changes

April 2012

So, what was last week like for you? Get a new job, get made redundant, or were you in Jeremy Hunt or David Cameron’s position and get hounded by the press?

Or, you could have been sat in the UK Supreme Court, watching the world of UK employment change forever.

Two sample court cases went in front of the UK Supreme Court last week, and set legal precedence. They were known in legal circles as the Homer case and the Seldon case, but what affect will they have on your job search?

The Homer case

The Homer case was brough by ex-police officer Terence Homer, who worked as an adviser on the Policy National Legal Database. The judges ruled that Homer was at a disadvantage in comparison with younger workers because he did not have time to complete a law degree before his retirement date, meaning he could never achieve the promotion.

Chris Wellham, employment lawyer at Hogan Lovells, commented:

Employers will have to be cautious approach to requiring job applicants to have a degree, or failing to promote employees without a degree. It will question whether high levels of experience is an acceptable substitute to having a degree.

The Seldon case

Leslie Seldon was a partner at City of London legal firm Clarkson, Wright & Jakes. Seldon was forced to retire at aged 65, and took a case against the firm, after the company claimed the move was “legitimate and justifiable”.

Clarkson, Wright & Jakes provided a defence based on public interest, in that it said retiring all partners at 65 was acceptable as it allowed associates to move up the ranks to partnership, and gave the workforce reasonable expectations on when senior vacancies would arise.

The Supreme Court justified Clarkson, Wright & Jakes having a retirement age based on “public interest”, but could not reach a verdict on whether the retirement age of 65 in Mr Seldon’s case was justified, in that the firm provided no evidece that as a result of his retirement younger staff were promoted. The case will go back to the employment tribunal on this point.

Presiding judge Lady Hale, said in judgement:

Improving the recruitment of young people, in order to achieve a balanced and diverse workforce, is in principle a legitimate aim. But if there is in fact no problem in recruiting the young and the problem is in retaining the older and more experienced workers then it may not be a legitimate aim for the business concerned.

The Employment Implications

The Homer case will change job adverts by effectively outlawing the terms “graduate” or “degree-qualified”. In much the same way that since 2006 the words “enthusiastic” and “energetic” are rarely used, as they could be construed of being aimed at younger staff.

The Simpson case means that while firms can retire older employees, they need to have a proved HR management strategy, and possibly proof of younger employees being held back, before such a judgement call could be deemed rightful.

Potential practical solutions

With regards the Homer case, many employers could take a lead from the professional societies, in giving different routes to qualfication. We already take account of this in the Job Adverts that we write, so that while a degree may prove one option, in example 5+ years of mentored experience may provide another. It doesn’t mean that the words degree or graduate will become outlawed personally, it just means that the level needs to be justified for that position, and then diverse routes defined. Often the definition of what is required these days is defined by the insurance companies, so the words degree and graduate personally won’t become outlaw in all cases.

The Simpson case is the more difficult call. It suggests to me that post age 65, there could be a case for enforced retirement on blocked-promotion grounds. But do you raelly want to chuck someone out, particularly if they have been a loyal employee? My view os that retirement has become a more flexible term in the last decade, and more so since the economic crunch. Pensions don’t buy as much retirement income, people are more active, so they want to work on. It suggests two practical solutions to me:

  • Flexible retirement: rather than a fixed date of 65, why not an optional date between 60- and 70? Employees could be offered instant optional retirement, or a turn-down hours type option
  • The waiting room: an age could be defined, 65 seemingly being the legal agreement. All employees over 65 keep their jobs, but when a potential new promotion arises in that grade, the oldest person in that grade is enforced to retire. It could hence mean that you work until 65 or 70, depending on grade and skill

I don’t think with regards retirement age and enforcement procedures, that the Simpson case will be the last that we see taken in front of the UK Supreme Court, or even taken further to the European Court of Human Rights. The law from enforced at 65 was changed purposefully, but seems to have left the door open as to what is legal and what is not. Hence only further judgements will clarify the potential acceptable positions.

Good Luck!


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photo by: KeithBurtis
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One Response to “Employment law changes: April 2012”

  1. Daniel Noakes Says:

    That is a very useful article! Great information, I think I may have a case. Regards, Daniel

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