By: Stuart White 17-12-2021



Tech supreme and outspoken entrepreneur Elon Musk recently Tweeted  

 ‘Let’s set an age limit after which you can’t run for political office.  ‘Perhaps a number just below 70.’

There has been speculation that he may have been referencing the incumbent US President Joe Biden, a 79-year old with apparent clear and present signs of... well, let’s call it ’forgetfulness’! .  Of course that limit would also apply to Biden’s predecessor and possible candidate for the office in 2024, Donald Trump but whatever you might think of Trump’s policies, he is undoubtedly compos mentis.  Retrospectively it would also have applied to former President Reagan who was 70 when he took office and 79 when he left.  No question about his mental competencies either.

It would suggest that Americans appreciate a leader somewhat long in the tooth, perhaps reassured by their worldly experience, though another reason might be that it costs so much to run a presidential campaign you have to accumulate a big bucket of money and a large pool of party donors to even stand for office, meaning that unless you’re born into wealth, it’s going to be a long and winding road before you hit the presidential jackpot.

But looking at the wider implication of Musk’s Tweet it’s interesting that ageism is the last bastion of acceptable discrimination and tolerated prejudice.  You’d be pilloried for  discriminating on most other bases – skin colour, sexuality, religion etc. – yet many professions still maintain a mandatory retirement age, applied ruthlessly and regardless of competency and effectiveness but perhaps this last bastion might be about to crumble.

In a landmark employment tribunal judgement in the UK this week,  a judge ruled that asking someone in their 60s when they are going to retire is age discrimination,   The case was brought by Ian Tapping, an experienced civil servant in his 60s who launched a grievance against bosses, concerned he was going to lose his job.  During a meeting with HR to discuss these concerns,  his plans for retirement were raised. The MoD claimed this was necessary to effectively manage staff and plan for hiring new employees when workers leave.    The tribunal heard Mr Tapping was project manager who worked as part of the RAF's Air Information Documents Unit - which deals with the interaction of military and civilian aircraft.  From the end of 2016 - when Mr Tapping started in the role - his line manager was Matthew Harrison, Leader of the Integrated User Services Team.  In October 2017 Mr Tapping told Mr Harrison he was struggling due to fibromyalgia, a long-term condition that causes pain all over the body, migraines and extreme tiredness.  He said his workload had become 'unmanageable' as he was doing the work of one and a half people.  However, his request for someone to help him was not granted and he was moved off the project.  Mr Tapping then decided to raise a grievance against Mr Harrison for failing to make reasonable adjustments for him.  The tribunal heard that in a meeting Mr Tapping was told by a senior official he had to drop the complaint. He added that 'if Mr Tapping did not make a good job of his next assignment that he would not have a job’.  Mr Tapping considered the official was making threats about his future at the MoD. He was then signed off work with stress and claimed he had been bullied.  The hearing was told that while he was off work in September 2018, Mr Tapping spoke to a member of the MoD's Employee Services Team, about instigating a bullying and harassment claim.  The tribunal said: 'Mr Tapping's witness statement referred to (her) asking questions to infer he was a reluctant worker and that she introduced a question as to when he was going to retire.  'He informed her he had no retirement plan but had assumed it would be his 67th birthday.  'Mr Tapping's evidence was that he was upset by the comment and did not think a 35-year-old would have been asked the question.'  Mr Tapping eventually resigned in January 2020 and sued his employers.

Judge Bax ruled it was 'unreasonable' to ask Mr Tapping about whether he would retire as he had shown no indication of wanting to leave his job.  He ruled the retirement suggestion from the MoD was a 'means of removing the aggrieved person from the problem.'   “Mr Tapping was in his 60s and therefore he was someone who could be considered to be entitled to start drawing on a pension at that time or in the relatively near future.  A person in their 30s would not be in such a position as they would not be able to take a pension at that age.  Mr Tapping was concerned about his career and had shown no indication of wanting to leave his job. In the circumstances of someone who wanted to know that his position was secure, it was unreasonable to ask him to consider when he intended to retire.  Mr Tapping was in a situation where he had raised a grievance and was very concerned about his employment with the MoD.  Suggesting that someone retires and leaves is not a solution to the subject matter of the grievance, it is a means of removing the aggrieved person from the problem.  The MOD relied upon a defence of justification and in particular the aim or need to effectively manage staff and ensure effective succession planning.  For someone who is seeking reassurance that their position and employment is safe, it is not reasonably necessary and therefore proportionate to ask if they are considering leaving.  I was not satisfied that the intention was to implement the stated aim and, in any event, in Mr Tapping's circumstances it was not reasonable and was not proportionate.  Mr Tapping was therefore treated less favourably on the grounds of his age.”  

A remedy hearing to decide on the compensation that Mr Tapping will receive is to take place at a later date.

So the lesson is  clear – don’t use the ‘R’ word to your older – or more politically correctly,  more experienced – employees.  However, for the President of the Free World , it is actually possible to send in the men in the white coats in extreme cases.  The Twenty-Fifth Amendment allows the vice president and a majority of the Cabinet to recommend the removal of the president in cases where he is “unable to discharge the powers and duties of his office,” and allows the House and Senate to confirm the recommendation over the president’s objection by two-thirds vote.   

However,  Elon Musk doesn’t get a vote!