A recent Employment Tribunal decision has provided a
useful insight into the issue of when a forced retirement might not
amount to age discrimination. Will Walsh from the Employment Team
explains further.
The default retirement age of 65 was abolished in April
2011. Since that time, a forced retirement will amount to
both an unfair dismissal and an act of age discrimination unless it
can be justified as a "proportionate means of achieving a
legitimate aim".
The change in the law has left many employers wondering what
exactly might be required to make out a case for justification.
Most have taken the view that retirement at 65 is simply not an
option. However the Employment Tribunal has decided in the
recent case of Seldon v Clarkson Wright & Jakes that retirement
at the age of 65 was indeed lawful.
In the case in question, law firm Clarkson Wright & Jakes had
a policy in place which made it mandatory for partners to retire at
the age of 65. Mr Seldon challenged this policy, alleging
that it amounted to age discrimination.
Clarkson Wright & Jakes suggested that it had two legitimate
aims for its retirement policy. The first was staff
retention. In relation to recruitment and retention of
associates, it was important that associates should see that upon
the retirement of partners, opportunities were created for
promotion to partnership. This helped the firm to retain key staff,
who might otherwise leave to further their careers elsewhere.
The second aim relied on by the firm was that of planning, in
terms of long term expectations as to when and where vacancies
would arise.
The decision of the Employment Tribunal was that the two aims were
legitimate and that a chosen retirement age of 65 was appropriate
and reasonably necessary to achieve those aims. The fact that
a different retirement age, either above or below 65, would also
have achieved those aims was not relevant, the age selected by the
firm was appropriate.
What does this mean for employers?
The general assumption of most employers is that it is no longer
possible to force employees to retire. This case shows that
it can be possible and also sheds some light on how Employment
Tribunals might tackle the issue of justification.
However the decision does also come with a warning attached.
Employers cannot assume that it means that it will be simple to
justify a mandatory retirement age of 65. Justification will always
depend on the particular facts and the situation of each particular
employer. Further, this particular case has been going through the
legal system for quite some time and was based on social policy and
demographics in 2006, before the abolition of the national
retirement age. Views about people working beyond the age of 65
have moved on since then, and indeed the Employment Tribunal
specifically commented in its Judgement that the case might be
decided differently on facts arising today
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.