In our August e-bulletin, we outlined the Government's proposal to scrap the default retirement age of 65 from October 2011, and the potential implications of this. Please click here for further information.
However, in the meantime, the default retirement age will remain at 65 and regulation 30 of the Employment Equality (Age) Regulations 2006 ('the age regulations') remains in force. This provides that setting a retirement age of 65 or above for employees will be automatically lawful, subject to compliance with various procedural requirements.
That said, there is no such provision for other kinds of worker, including partners, and a requirement that partners retire at a certain age could, as such, be discriminatory on the grounds of age in the absence of objective justification. This is something that was recently explored by the Court of Appeal in the case of Seldon v Clarkson Wright & Jakes (a partnership) and Secretary of State for Business Innovation and Skills.
Mr Seldon, a partner in the solicitor's firm of Clarkson Wright and Jakes, was compulsorily retired on 31 December 2006, the end of the year in which he reached 65 (in accordance with the firm's partnership deed). However, he wished to continue working for the firm. After his retirement, he therefore issued tribunal proceedings arguing that he had been directly discriminated against on grounds of age.
The Court of Appeal upheld the original employment tribunal's decision that the rule requiring partners to retire at 65 was a proportionate means of achieving the legitimate aims of workforce planning and providing associates with promotion opportunities. Justification must be primarily by reference to social policy objectives and these two aims were found to be consistent with the social policy of providing employment and promotion opportunities for young people.
Neither the fact that a retirement age of 66 would have been less discriminatory in some cases, nor the fact that the firm might have justified any number of retirement ages, meant that selecting 65 was unlawful.
Accordingly, Mr Seldon's appeal was dismissed.
The content of regulation 30 of the age regulations supported the firm's choice of a compulsory retirement age of 65 'as a fair and proportionate cut-off point.' However, if the default retirement age is removed on 1 October 2011, the issue of justification of retirement ages will remain relevant and different organisations' selection of retirement ages may well lead to further debate in this regard.