Mandatory retirement of law firm partner at 65 was objectively justified
The Employment Appeal Tribunal (“EAT”) has held that 65 was an appropriate age for mandatory retirement in the case of Seldon v Clarkson Wright & Jakes.
In this long-running case (which many of our readers will be familiar with), after a number of appeals, the Supreme Court had held that the Respondent’s aims in having a mandatory retirement age were legitimate in accordance with EU law, but had returned the case to a Tribunal to re-examine whether a retirement age of 65 was a proportionate means of achieving those aims.
In December 2006, Mr Seldon, a former partner in the Respondent solicitor’s firm, was forced to retire having attained the age of 65, in accordance with the provisions in the Respondent’s partnership deed he had entered into. Mr Seldon issued tribunal proceedings, claiming his forced retirement constituted direct discrimination on the grounds of age.
Direct age discrimination can be objectively justified (unlike other forms of direct discrimination), providing that there is a legitimate aim and the means of achieving that aim are proportionate (i.e. they are appropriate and necessary).
The Respondent in this case argued that the legitimate aims of its retirement age were:
- The retention of non-partners by way of offering them partnership opportunities within a reasonable period;
- The facilitation of long term workforce planning; and
- “Collegiality’, that being the aim of preserving respectful relationships between colleagues and avoiding dismissals due to declining performance, which would arguably damage the work environment.
Having been remitted to the EAT, it was held that a mandatory retirement age of 65 was appropriate, reasonable and necessary for the achievement of its legitimate aims. In arriving at this decision, the EAT gave weight to (amongst other factors) the fact that the Claimant had arguably consented to a compulsory retirement age by signing a partnership deed and to the aim of collegiality, which was confirmed to be legitimate.
As readers may be aware, the default retirement age was abolished in April 2011 and therefore it was also of significance to the decision that the default retirement age was still in force in 2006 when Mr Seldon was forced to retire. It is worth noting therefore the EAT’s ruling may have differed had Mr Seldon’s retirement date fallen after April 2011.
When considering whether a mandatory retirement age is objectively justifiable, the EAT confirmed that it is necessary to look at where the balance lies between any discriminatory effect of choosing a retirement age, and the success in achieving any legitimate aims identified.
Should employers wish to implement a mandatory retirement age, they should consider the precise nature of their business/industry and what their specific legitimate aims are.
Where an organisation has a requirement for physical work, for example, it may be easier to objectively justify mandatory retirement at a younger age. However, given the comments in the case of Seldon, there may also be some valid arguments in relation to workforce planning and “collegiality”.
These aims must be considered on a case by case basis and documented (to show the Tribunal the reasons for making a conscious decision at that time, having considered whether less onerous means of achieving that aim could be utilised). Where in doubt, careful advice should be sought to minimise the risk of a claim for age discrimination.