Retiring a partner at 65 years old was a proportionate means of meeting the employer's legitimate aims, HR Headlines

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.