In the recent EAT decision of Seldon -v- Clarkson Wright & James it was held that a partnership could impose a compulsory retirement age of 65 if it could be objectively justified. The default provision allowing employers to retire employees at 65 (currently before the ECJ in the Heyday case) does not apply to partnerships. The question of objective justification has been remitted to the Employment Tribunal for reconsideration.

The judgment follows earlier decisions confirming that direct age discrimination should not be treated differently to other types of discrimination - and, on a positive note for the New Year, “for a partnership to seek to conduct matters so as to achieve “a congenial relationship amongst the partners” is a perfectly legitimate aim”. Another point to note is that although the complainant had consented to the rule at the time it was adopted, this did not automatically make it justified.

Perhaps the most interesting part of the judgment deals with the question as to whether the partners could seek to justify the rule, even though at the time it was introduced they had given no thought to age discrimination. The EAT concluded that a “retrospective” justification could be taken into consideration, but may be subject to stiffer scrutiny than one which was considered at the time a rule was first introduced. It may well be that a discriminatory provision introduced post December 2006 would be subject to even greater scrutiny and so our advice would always be for those introducing potentially discriminatory measures now to clearly record the justifications.