Too young to retire, too old to keep the job

The quirks of law mean that ageing workers are damned by the critics whatever they do.

By Theodore Dalrymple

Most people of a certain age, including me, like to think that they are irreplaceable. It’s a delusion that, like osteoarthritis, is almost inevitable after one has passed the meridian of one’s life.

How pushy all those young people are, how eager to take one’s place, when one knows perfectly well that they are not yet ready (from the point of view of skill and experience) to do so! They never will be ready, of course, because the world has gone steadily downhill ever since one’s childhood. Really, they all have unresolved Oedipus complexes, these youngsters. That’s why they are so eager to take over.

And yet, on the other hand, one will be quite relieved to retire, to be subject no longer to the day-to-day pressure of work, to be free to do all those things that one had no time for while one’s whole body was pressed to the grindstone, to take off at a whim to an exotic location or just spend the day pottering about without feeling guilty. One must never forget that doctors who retire at the last possible moment have a much reduced life expectancy by comparison with those who retire before they are actually forced to go. In other words, one should retire to something and not just from something.

Like everyone else, people of potential retirement age – the elderly are those who are more than five years older than oneself – don’t like being told what they must or mustn’t do: retire or not, they want to make the decision for themselves.

Recently, we have grown accustomed to the idea that no one has the right to dismiss us just because we have reached a certain age, and indeed, that we must work longer because our pensions are unaffordable. But now the pendulum seems to be swinging the other way, because the young in these times of dearth need their chance of employment, and so once more we must retire. Whatever the old do now – retire or keep working – they are selfish brutes.

What the law can give, the law can take away. A recent ruling by the Supreme Court gives back to employers the right to dismiss old people because they are old, at least in certain circumstances. The ruling makes chilling reading.

The case was that of a partner in a firm of solicitors. The partners had agreed by private contract to retire at the age of 65, but when the partner who subsequently brought the case reached the age of 65, he found that he could not afford to do so. In the meantime, age discrimination had been outlawed, so when the other partners refused to allow him to continue in the practice, he brought a case against them. The Supreme Court has ruled against him, not on the grounds that he wanted to break the contract, but on other, potentially sinister grounds.
The judgment is complicated, but the overall impression it gives is that a person may be lawfully dismissed on grounds of age if such dismissal meets social objectives as laid down by the government; for example, to meet the need for “intergenerational fairness” in the distribution of jobs, or to reduce unemployment among the young. But people cannot be dismissed if it is for “purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness”. In other words, the employer must consider everyone’s interests but his own.

The problem with what the judgment considers legitimate objectives is that they are contradictory, especially today, when the number of jobs available is smaller than the number of people wanting to work. We want to reduce youth unemployment, and one means of doing so is to get older people to retire, so that young people can climb on to the job escalator; on the other hand, we want to delay the retirement age because the cost of pensions is a drag on the economy. Besides, people are not only living longer, but are healthier; they do not want to don the carpet slippers too soon. So there are good reasons to permit discrimination on grounds of age and equally good reasons not to do so.

According to the judgment, only the state can adjudicate between the competing claims of discrimination and non-discrimination. The image of Solomon and the two putative mothers of the child comes to mind. But how Solomonic is the state? After all, it created a large part of the mess in the first place. People have to work so long partly because for years the state, in its Solomonic wisdom, has been operating an unfunded pyramid pension scheme that makes Mr Madoff seem like a small-time operator.

So, are the old or ageing selfish for continuing to work? Or are they selfish for having retired too soon? Now one, now the other; both and neither. The problem is that the circle cannot be squared, not even with age and experience.