More than seven years on, the age discrimination case Seldon v Clarkson Wright & Jakes is still throwing up points of interest. Back in 2012 the Supreme Court decided that the forced retirement of a law firm partner was potentially justified age discrimination. The employer had legitimate aims (retention of younger staff; workforce planning and “congeniality”) which it was appropriate to achieve by applying a rule requiring retirement at a fixed age. But the question of whether 65 was the appropriate age was referred back to tribunal.
This time last year the Tribunal decided that the age of 65 was "reasonably necessary" to achieve the legitimate aim and the EAT has now upheld this. Age 65 fell within a narrow range identified as proportionate (64 to 66) and the fact that it could have been set a year later did not mean 65 was the wrong choice. The EAT agreed that it was appropriate to take into account the existence of a default retirement age of 65 at the time, and the consent of the claimant and other partners to compulsory retirement at 65. The key point was that the Tribunal had correctly struck the balance between the discriminatory effect of choosing a particular age (an effect which could work both ways – against the claimant but in favour of associates and thereby in the interests of the other partners) and achieving the legitimate aims.
Quite apart from the fact that the default retirement age was abolished three years ago, there are questions over the extent to which this case could be relied on now. It seems unlikely that consent would carry as much weight in the more usual situation where any compulsory retirement age would be agreed in the employment contract, given that there would not be the same equality of bargaining power. And the aim of "congeniality" – limiting the need to expel partners by performance management – is now regarded as outmoded (and was not pursued when the case was sent back to the Tribunal by the Supreme Court).
Also on justifying age discrimination, in Specht v Verwaltungsgericht Berlin, the European Court decided that a provision in German law under which the level of civil servants' basic pay is largely dependent on age constituted direct age discrimination which was not justified. Although the pay scheme did contain an element of length of service – generally accepted as a legitimate aim (and specifically exempted from age discrimination rules under UK law) – the problem was that at the time of appointment, the sole criterion on which grade and therefore salary was assessed was age. Transitional provisions were also discriminatory but the Court decided that this had been justified on the basis that it was legitimate to protect employees from suffering a loss of salary.
Interestingly, the Court commented that justifications based on an increase in financial burdens and possible administrative difficulties cannot justify failure to comply with age discrimination laws.