UK: Appeal news - tribunal fees, unfair dismissal compensation cap, retirement age

• UNISON has been granted permission to appeal to the Court of Appeal in its judicial review application challenging the introduction of tribunal fees, summarised here.
• Last year the upper limit on the unfair dismissal compensatory award was varied to the lower of 52 weeks’ pay and the annually fixed limit (currently £76,574), for cases where the effective date of termination is on or after 29 July 2013. An application for judicial review was made challenging the new cap as indirectly discriminating against older employees.  It has now been reported that the High Court has dismissed the challenge, although apparently an appeal is being considered.
• The EAT has upheld the tribunal's ruling in Seldon v Clarkson Wright & Jakes (summarised here) that a mandatory retirement age of 65 for law firm partners was objectively justified on the facts. The EAT rejected the argument that, if the firm’s aims could also have been achieved by a retirement age of 66, it could not justify choosing 65. It would always be possible to argue that the employer could have reduced the discriminatory effect by choosing an age slightly higher than it had - this was just the reality of selecting a bright-line date. The key question was whether the chosen age was reasonably necessary to achieve the legitimate aims.

The ruling is helpful in its comments on bright-line dates, but it should not be taken as a green light for employers who have chosen to retain compulsory retirement ages, given the importance of the size and culture of the firm in this case, the more equal bargaining power of partners compared with employees, and the fact that at the time the default retirement age (since abolished) provided a rationale for choosing 65.