Anyone for Cricket?

We’re soon to enter cricket season so it’s timely to report on the outcome of two Employment Tribunal age discrimination claims brought by two former cricket umpires.

Peter Willey and George Sharp were removed from their posts as ‘first class’ umpires after reaching the England and Wales Cricket Board’s (ECB) ‘expected retirement age’ of 65.

They brought claims of age discrimination at the Employment Tribunal on the grounds of indirect age discrimination.

The Tribunal found in their favour that there was prima facie discrimination i.e they had been treated less favourably because of their age but concluded that the treatment was justified.

The ECB ran two arguments in respect of justification.  First, that the decision was justified because the ECB needed to ensure opportunities for succession planning and appointing new umpires. Secondly, because it wanted to maintain the dignity of the umpires in not having to dismiss them at a later date because of a decline in performance.

The tribunal found that the first reason, but not the latter, justified retirement and the discrimination.

This decision is very much in line with the current spate of indirect discrimination cases where discrimination is found to be justified. You may recall the decision in the November 2014 case of Mr White v the Ministry of Justice.  Mr White was a circuit judge who was retired (against his will) at the Ministry’s compulsory retirement age of 70.

The main issue in this case also related to objective justification of the retirement age.  The Tribunal accepted that legitimate aims included inter-generational fairness, the preservation of the judge’s dignity (hence no doubt why the ECB tried to run this line of argument) and maintaining of public confidence.  Mr White’s claim (like those of Willey and Sharp) was dismissed.

So, this recent run of justification centred cases has very much ‘watered down’ the removal of compulsory retirement ages.  The arguments in the two cases may have been different but the outcome was the same.  For these umpires, ‘that’s just not cricket’!