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

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