Age Discrimination: is compulsory retirement at 65 lawful?

Leslie Seldon was an equity partner in a Kent firm of solicitors, Clarkson, Wright & Jakes.

The partnership deed had a retirement age of 65. But as Mr Seldon reached his 65th birthday, he realised that he could not afford to retire. He asked his partners if he could carry on working, as a consultant or salaried employee. The partnership refused and Mr Seldon was retired. He brought a claim in the employment tribunal for age discrimination.

He was unsuccessful in the tribunal, the Employment Appeal Tribunal and the Court of Appeal. He appealed to the Supreme Court: Seldon v Clarkson Wright and Jakes [2012] UKSC 16.

It was clear that Leslie Seldon suffered direct discrimination on grounds of age, but was such discrimination justified (and, therefore, lawful) as a proportionate means of achieving a legitimate aim?

The Supreme Court considered whether the partnership had a legitimate aim for retiring Mr Seldon. The Court found that three of the partnerships aims were legitimate, namely:

  1. Ensuring that associates are given the opportunity of partnership after a reasonable time, thereby ensuring that they do not leave the firm

  2. Facilitating the planning of the partnership and

  3. Limiting the need to expel partners by way of performance management .

The case returns to original employment tribunal to decide whether choosing the age of 65 years was a proportionate means of achieving these aims.

The message to employers and partnerships is very clear. Any specific retirement age is acceptable in principle, but must be justified on a case-by-case basis, so that the same aims cannot be achieved using a less discriminatory approach. Justification will not be easy and is best set out in a well-drafted employment contract or partnership deed. Most employers and partnerships will surely decide to do without any age-related retirement age.

Helen Phillips, Solicitor, Just Employment Solicitors

Helen Phillips, Solicitor, Just Employment Solicitors.

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