On 25 April 2012, the Supreme Court handed down its judgment in Seldon v Clarkson Wright and Jakes, an important case which concerns the scope for justifying direct discrimination on the ground of age and in particular a compulsory retirement age.
Mr Seldon was a partner in the law firm Clarkson Wright and Jakes and was made to retire at 65 in 2006. The former age regulations that allowed employers to retire employees did not apply to Partners. Claiming that his forced retirement was discriminatory, he took his complaint to the Employment Tribunal, but lost. The Tribunal accepted that his firm’s retirement policy pursued three legitimate aims:
- Giving associates an opportunity of partnership within a reasonable time, and thereby an incentive to remain with the firm
- Facilitating workforce planning by knowing when vacancies were to be expected
- Limiting the need to expel underperforming partners, thus contributing to a congenial and supportive culture within the firm
The Tribunal found that the compulsory retirement age of 65 was a proportionate means of achieving the three legitimate aims and therefore rejected the discrimination claim.
Mr Seldon appealed and the case eventually reached the Supreme Court, by which time it had become more significant as a result of the abolition of the Default Retirement Age for employees in 2011. The Supreme Court judges rejected Mr Seldon’s appeal, but questions do still remain over the circumstances in which an employer can justify a compulsory retirement age.
Since the abolition of the Default Retirement Age employers can only justify a compulsory retirement age if they are able to show that it is a proportionate means of achieving a legitimate aim. The Supreme Court judgment signals that it may, depending on the circumstances be permissible, for employers to force older staff to leave to open up jobs for younger people. However, the judges found that in order to satisfy the test, employers must show that there is a legitimate aim in the particular circumstances of the case and that the means adopted to achieve it are both appropriate and necessary.
Employers should not, therefore, get carried away and view this judgement as authority for applying or re-instating a compulsory retirement age. It clearly shows us that trying to achieve a balanced and diverse workforce is a legitimate aim, but the judgment is a long way from saying that a compulsory retirement age of 65, or any other age for that matter, is both appropriate and necessary to achieve that aim in all cases. In fact, the Supreme Court has sent the case back to the Employment Tribunal to decide whether a retirement age of 65 was proportionate in the particular circumstances of this case and of course, what might be proportionate in the case of a firm of solicitors and in particular its partners, might not be so for other businesses, particularly large employers.