· 2 min read · Features

Direct age discrimination: Seldon V Clarkson, Wright and Jakes

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Mr Seldon, a partner at solicitors Clarkson, Wright & Jakes, raised a direct age discrimination claim after he was forced to retire under the partnership deed.

The Employment Tribunal (ET) rejected Mr Seldon's claim, deciding the retirement age was defensible as it proportionately achieved legitimate aims within the meaning of the Employment Equality (Age) Regulations 2006 (Age Regulations). There were appeals to the EAT, the Court of Appeal and the Supreme Court arguing whether the Respondent's aims were legitimate, and, if so, whether the compulsory retirement age was a proportionate means of achieving them.

Supreme court decision

To justify direct age discrimination, the legitimate aims must be in the public interest rather than particular to one company.

The aims of business planning and retention advanced by the partnership as justification were held to be legitimate as they facilitated inter-generational fairness and dignity, permissible objectives identified by the European Court of Justice.

The case went back to the ET to consider whether the retirement age itself was a proportionate means of achieving these specific legitimate aims.

Second ET decision

The mandatory retirement age had to balance the interests of the partnership, the individual partners and the associates who aspired to partnership.

In deciding whether the retirement age proportionately achieved the objectives of business planning and retention, the chosen age could not be so low as to lead partners to retire before the end of their careers and move onto another firm, not could it be so high as to discourage associates from remaining with the partnership due to the lack of opportunities. The age had to enable the partnership to plan properly for the future. The ET also reflected on the fact that the partners had agreed to the partnership deed with the mandatory retirement age.

The ET concluded that when Mr Seldon retired, a compulsory retirement age of 65 was at the time proportionate, drawing some comfort from the fact that at the time 65 was the normal state pension age.

Comment

While the decision is interesting as it highlights factors the ET will consider when deciding the proportionality point, employers should remember that this was a partnership rather than an employer/employee relationship. What is proportionate so as to achieve a legitimate aim for a partner will not be applicable across all levels of employment. Furthermore, the ET specifically stated it may have come to different conclusions had the default retirement age been repealed at the time, which of course it has since.

Employers would still be required to show that implementation of a mandatory retirement age is the only way of proportionately achieving the objective and it could not be achieved by any other means.

This is likely to be a difficult evidential burden to overcome, and a policy which was once proportionate could become untenable over time with a change in the workforce or prevailing market conditions. Faced with such challenges, many employers have simply abandoned any mandatory retirement age at all.

Jonathan Exten-Wright partner, and Ruaridh Goodfield, Trainee Solicitor at law firm DLA Piper