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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Not wishing to mention names at this stage, I am a member of

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Not wishing to mention names at this stage, I am a member of a professional self governed artistic company and so I and all my colleagues are self employed and shareholding members. We employ an office staff to run the business for us, ie. to provide us with work and income. The board of directors and chairman are made up from the self employed members. At an AGM a few years ago a vote was passed the all members were asked to retire at 65 regardless of ones continuing ability to carry out the work and make a contribution. Is this now an illegal ageist policy? Given that we are not employed in the normal sence.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. So are you officially self employed?

Customer: Yes
Customer: Just about to start work again. Talk later?
Ben Jones :

yes sure I will respond on here with my answer and you can access it later

Customer: OK. I'm on a break for about 10 mins.
Ben Jones :

ok I was ust drafting my response, sorry wasn't sure when you were coming back, I should be done shortly although may be just as you are going off

Customer: Thanks, XXXXX XXXXX later.
There are certain anti-discrimination laws and these are covered under the Equality Act 2010. One of the grounds on which discrimination can occur is age. The issue, as you have identified, is whether you are protected under this specific legislation based on your position and legal status.

The good news is that the Equality Act does not just protect employees and a wide range of position are covered. It covers those in "employment" which includes employment under a contract of employment, a contract of apprenticeship or a contract personally to do work. SO apart from traditional employees it also includes the self-employed, provided that their "employment" contract obliges them to perform the work personally. This means the self employed would only be protected if they are not allowed to sub-contract any part of the work or employ their own staff to do it.

Assuming the above definition is met then you can claim protection under age discrimination legislation. It means you should not be treated less favourably because of your age. In terms of retirement, whilst the default retirement age of 65 has been abolished, it does not mean employers can no longer retire those who have reached that age – it is still possible as long as it can be shown it is a proportionate aim of achieving a legitimate aim.

Examples of when the courts have decided a legitimate aim existed include:
• Workforce planning
• Promoting the recruitment and retention of younger employees
• Contributing to a pleasant workplace and protecting the dignity of older workforce by not requiring them to undergo performance management procedures
• Protecting against incompetence
• Ensuring a high quality of service
• Having an age-balanced workforce

So it is possible to forcefully retire someone even if they are protected as long as it can be shown that the defence mentioned above applies. That is essentially for a tribunal to decide if it is the case.

I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you and feel free to bookmark my profile for future help:
Ben Jones and 2 other Law Specialists are ready to help you
Customer: replied 4 years ago.
Many thanks. So in fact then this is an illegal policy as it is age discrimination?
well...not necessarily - there is a potential for age discrimination, but he employer is able to defend this as being legal if they can how it is a proportionate means of achieving a legitimate aim, such as in the examples above