An Employment Tribunal has finally decided that an enforced
retirement age was justified in the case Seldon v Clarkson
Wright & Jakes (ET/1100275/07).
After a succession of appeals, the case was sent back to an
Employment Tribunal to decide whether the firm of solicitors could
defeat a direct age discrimination claim by showing that retiring a
partner at the age of 65 was a proportionate means of meeting its
legitimate aims.
Claim
Seldon was compulsorily retired at 65 – this was allowed for
by the firm's partnership deed. The default retirement age
provisions in force at the time, which permitted retirement at 65,
did not apply to partnerships so Seldon lodged a direct age
discrimination claim.
Employment Tribunal
The Employment Tribunal decided that the setting of a retirement
age of 65 – which was direct age discrimination – was
justified because it was a proportionate way of achieving three
legitimate aims:
- To ensure that more junior solicitors were given the opportunity of partnership after a reasonable period so that they did not leave the firm;
- To facilitate workforce planning, allowing the firm to have a realistic long term expectation as to when vacancies would arise; and
- To limit the need to remove partners by way of performance management, contributing to a congenial and supportive culture.
Appeals
The case made its way up to the Supreme Court which held that the
firm's aims were legitimate, in accordance with EU case law but
returned the case to an Employment Tribunal to re-examine whether
retaining a retirement age of 65 was a proportionate means of
achieving them.
Remitted to ET
The Employment Tribunal found that a retirement age of 65 was a
proportionate means of achieving the firm's aims for a number
of reasons:
- Seldon himself had though a retirement age of 65 was a 'reasonable target'.
- Thepartners did not diagree with the retirement age of 65; and
- In assessing the needs of the firm, its partners and associates, the firm's needs (encouraging partners to stay but not to an age where associates would lose interest and leave because of lack of progression) were paramount.
Comment
The most important practical guidance from the Courts is that each
case rests on its own set of facts and justification will always
depend on the employer's circumstances. Also, this case was
decided based on the social policy and demographics in 2006 and
things have changed in the last seven years, so the case may well
have been decided differently today.
The Supreme Court confirmed that to justify direct age
discrimination, legitimate aims must be consistent with 'social
policy objectives', and not just reasons specific to an
individual employer's situation. As far as proportionality is
concerned, the evidence to justify age discrimination must show
that the means chosen achieves the aims, there is no other
appropriate way to do this, and the benefits to the employer
outweigh the discriminatory effect.
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