Age discrimination law differs in some important respects from laws against discrimination involving other kinds of protected characteristics. Unlike most grounds of discrimination such as sex and race, under the Equality Act 2010 it is possible to justify both direct and indirect age discrimination on the ground that the measure is a proportionate means of achieving a legitimate aim. Direct discrimination on grounds of age can only be justified by reference to social policy objectives such a promoting access to employment for younger people or ensuring a mix of generations of staff so as to promote the exchange of experience and new ideas. Like indirect discrimination on the ground of other protected characteristics, indirect discrimination on grounds of age can also be justified by reference to a broader range of legitimate objectives including the business needs of an employer. In legal claims for compensation for age discrimination, though there may be questions about whether age discrimination was involved either directly or indirectly, the much harder and more contested legal question is likely to be whether the conduct or practice can be justified as a proportionate measure in pursuit of a legitimate aim. In the absence of detailed statutory guidance about what should count as a legitimate aim and how the balancing process of the proportionality test should be applied, the courts have to address these questions by reference to general principles and conceptions of the purpose and proper scope of the prohibition against age discrimination.

Stuart Goosey offers his book as an instructive guide to this central question about the application of age discrimination law. He provides a detailed analysis of how these issues have been addressed in the leading cases in the UK. He develops his own theoretical framework for understanding the purpose and scope of the legislation, which he calls a “pluralist theory”. His central claim is that his pluralist theory should assist in resolving difficult issues that arise in connection with age discrimination, especially with regard to the vexed question of justification. Although most of the case law has arisen in the context of employment law, such as the issue of whether compulsory retirement ages can be lawful, Goosey also discusses other instances of possible age discrimination, as in Chapter 8 that concerns health care rationing and best practice guides issued by the National Institute of Clinical Excellence, which often involve indirect discrimination on the ground of age as a result of their use of a measure of whether the treatment would extend good quality life at reasonable cost.

What is the pluralist theory of age discrimination proposed in this book? The theory is pluralist because it does not claim that the purpose of the rules against age discrimination can be discovered in one value such as equality or autonomy. Instead, the law is justified, according to this pluralist theory, by a combination of principles: equality of opportunity, social equality, respect, autonomy and efficiency. This list is not a description of the historical reasons for the legislation, though that history is considered in Chapter 6. The list is rather a product of reasoned reflection on what moral principles best justify this part of the law. With the possible exception of efficiency, these moral principles can be used to explain other branches of discrimination law. The efficiency principle underlying age discrimination concerns the use of age as a proxy for other more complex grounds for a decision. For instance, when should an infant commence schooling? The correct answer is presumably when children have the maturity to take advantage of education, but instead of incurring the expense of individual assessments, we hit upon a particular age when most children seem to be ready. Similarly, in promulgating its guidance, the National Institute of Clinical Excellence is justified on grounds of efficiency in endorsing age-related differences in approved treatment. But Goosey makes clear in Chapter 6 that he does not accept that efficiency in the sense of business efficiency, competitiveness and greater profits should be regarded as principle capable of justifying laws against age discrimination, even though governments tend to emphasise the “business case” for laws against discrimination.

If we accept the plausibility of the broad outlines of this pluralist theory of age discrimination, which I think we should, the crucial question becomes whether the theory really helps in the application of the law to hard cases. Consider, for instance, the question of whether employers should have compulsory retirement ages that permit dismissal of an employee simply because that employee has attained a particular age. How might the pluralist theory help us to assess the legality and moral validity of compulsory retirement ages? Goosey argues that if an employer's conduct merely reflects adverse stereotypes with regard to older people, it violates the principle of respect, and is therefore incapable of justification. Does compulsory retirement violate the principle of respect? For those who lose their jobs, they may feel disrespected because of the implication that they are no longer competent to perform the job, but employers may claim that the policy of compulsory retirement is motivated not by prejudice against older workers but by the aim of creating opportunities for younger people for advancement. If employers succeed in persuading a court that they have a legitimate aim other than adverse prejudice, the respect principle will apparently be satisfied. Goosey then proposes that we should assess whether the aim that has been put forward as the justification promotes one of the other moral principles – equality of opportunity, social equality, autonomy and efficiency. If the aim does not fit into one of those principles, the discrimination cannot be justified. Does the aim of creating opportunities for advancement for younger people fit within one of those principles? It might be justified on the ground of equality of opportunity or autonomy in the sense that younger people should get their turn at good jobs, or simply on the ground that it promotes social equality by sharing out good jobs more equally. The proportionality test then asks whether there is another way of achieving the same legitimate aim that avoids compulsory retirement. That depends not on theory, but on the empirical question of alternatives. For instance, could the employer increase the number of good jobs so that younger workers can be promoted without dismissal of older workers? At the final stage of the proportionality enquiry, Goosey proposes that we should assess whether the benefit of promoting the principles of the pluralist theory outweigh the harm to the claimant's interest, which is, in my example, the loss of a job on being compulsorily retired. On that very difficult final question, Goosey's pluralist theory has little purchase, though he does stress that in conducting the balancing exercise judges should normally defer to the democratically mandated decision-makers and avoid interference where the issue is complex. He also suggests that out of respect for autonomy “a court or tribunal should generally assume that voluntary agreements to age distinctions match an appropriate balance of competing principles” (p. 166). That proposition seems to mean that a contractually specified compulsory retirement age should always be regarded as a proportionate measure.

There is much to be admired in this book. It is presented with great clarity throughout. It can be recommended as an excellent introduction to the subject of age discrimination as well as a work of sophisticated scholarship. Chapter 2 provides a good summary of the legislation. Chapter 9 contains a useful summary of the argument. Care is taken throughout to explain the methodology. The law discussed is almost entirely the jurisdiction of the UK, but there are occasional references to other jurisdictions, and of course the domestic law is based on a Directive that applies throughout the EU. Experts in this area of the law may not find much that is novel, but I think that the procedure for the enquiry into the morality and lawfulness of age discrimination outlined in the previous paragraph could provide a valuable resource for everyone.

There is also a critical dimension to the analysis that is particularly valuable. For example, in Chapter 7, Goosey subjects the reasoning of the Supreme Court in some leading cases to searching scrutiny. In his discussion of Seldon v Clarkson Wright and Jakes [2012] UKSC 16, a case concerning a compulsory retirement age for partners in a firm of solicitors, he tackles a mistake that is repeated in almost every case. The judges say that age discrimination is different from other kinds of discrimination such as race and sex because classifying people by age is not intrinsically demeaning. But is age discrimination really different in that way? The alternative view is that age discrimination is always felt by adults (and probably teenagers as well) to be demeaning and conveys demeaning messages, even though it may be completely justifiable in particular contexts. It is certainly the case that unequal treatment on the ground of age can express the view that the disadvantaged age group has a lesser moral worth in some respect. It is my view and appears also to be Goosey's view (p. 131) that the legislation frames the issue correctly: direct age discrimination is exactly like other grounds of discrimination in that we should assume that it conveys the message of disrespect. The only difference is that it is much easier to rebut that presumption in connection with age discrimination than with most other grounds of discrimination because age discrimination can in fact support many (socially) legitimate aims.

Goosey then challenges other aspects of the reasoning of the Supreme Court in Seldon. He disagrees that it was a legitimate aim for the law firm to have a mandatory retirement age in order to avoid capability or performance assessment (pp. 132–33). He argues that the law firm's aim of using a retirement age in order to avoid unseemly debates about capacity is itself a form of demeaning stereotyping, for it sends the message that older workers are usually incapable of doing their jobs, and, I might add, it assumes the prejudicial stereotype that older workers are irascible and lack the ability to make objective assessments of their own capacity. Goosey suggests that although capability assessments may be a bit demeaning, they are less demeaning than dismissal without any assessment of capability. That argument seems to me to be persuasive: capability or performance assessments are annoying but not demeaning if everyone has to fill in the forms periodically.

In contrast, Goosey accepts that another legitimate aim identified by the Supreme Court was valid. This is the aim of intergenerational fairness. The idea is that older workers have had a “fair innings” and there comes a time when they should make way for the next generation rather than block their opportunities. As Goosey acutely observes, this legitimate aim is in fact positive action based on age. He approves this aim as legitimate because it does not have the effect of stigmatising older people or marking them as inferior (p. 134). Although I doubt that this point in his argument is entirely consistent with his earlier criticism of the canard that age discrimination is different from other grounds of discrimination, I accept that positive age discrimination for reasons of intergenerational fairness is a vital social policy that has the potential to justify a mandatory retirement age.

The final part of the assessment of Seldon concerns the last stage in the proportionality test. Was the benefit to intergenerational fairness achieved by the mandatory retirement age outweighed by the cost to the claimant of losing his job, his income, his inclusion in the workplace, and his self-respect? Goosey endorses the employment tribunal's view that since the retirement age was part of the partnership agreement that the claimant had signed, that demonstrates that the benefits outweighed the costs. The claimant had not questioned the retirement age when he was made a partner, so he must have judged the benefit of it (a vacancy in the partnership) to exceed its costs (his dismissal when he reached the age of 65). Although that is possible, it seems to me more likely that in “tournament workplaces” like law firms, where you are either up or out, you do not quibble about the terms of the partnership agreement when the call finally comes. As well as being an adhesion contract, at the time of making the partnership agreement in this particular case, the law clearly indicated the legitimacy of mandatory retirement ages. It was only in 2011 that the default legal protection for compulsory retirement at age 65 was removed, long after this claim had been commenced. The aspiring partner could not have much confidence in challenging what appeared to be a perfectly lawful practice under domestic law. Therefore, the argument that the measure was proportionate based on the claimant's consent in this case seems to me rather unpersuasive. And even if it had been properly agreed with full information and absence of pressure, it is unclear to me why we should assume that claimant's original assessment of the costs and benefits of the mandatory retirement policy were correct.

Goosey applies his critical analysis to many other cases. For instance, the Court of Appeal in a case concerning age discrimination in redundancy payments, Lockwood v Department of Work and Pensions [2013] EWCA Civ 1195, is said to have probably reached the correct result but for the wrong reasons. But the important judgments of the Court of Appeal in Woodcock v Cambria Primary Care Trust [2012] EWCA Civ 330 and the Supreme Court in Homer v Chief Constable of West Yorkshire [2012] UKSC 15 are approved. Finally, Goosey endorses the decision of an employment tribunal in White v Ministry of Justice [2014] ET/2201298/2013 that compulsory retirement of judges at age 70 is justified. He applies the aim that was found to be legitimate in Seldon, namely to create opportunities for younger people. While that aim may have applied here (the evidence was scanty), surely the most compelling reason for a compulsory retirement age for judges is to avoid any suggestion that they are being dismissed because their judgments are disliked by the Minister of Justice? If disapproval by a Minister became a ground for dismissal, it would blast a gaping hole in the fragile structure of the Rule of Law. The option of dismissing judges on the basis of capability is therefore simply not available and must be replaced by a compulsory retirement age. That is the legitimate aim here, though it is hard to fit into Goosey's pluralist theory since it is not about social policy but the rule of law.

I have devoted a substantial part of this review to what are a relatively few pages in the book (pp. 129–46) where the pluralist theory is used to examine the judicial application of the legislation. My excuse is that I found these to be the most insightful discussions of these cases I have read. At their best, these passages demonstrate the value of the pluralist theory developed by Goosey, if only by stimulating in the reader both strong agreement and disagreement, often in rapid succession, to the insightful and detailed critique of these well-known cases.