A tribunal has held that a compulsory retirement age for law firm partners was justifiable on the facts. This may provide some hope for employers facing the prospect of needing to justify a retirement age for employees should the default retirement age regime (applicable to employees only) be swept away by the Heyday challenge in the ECJ.

In this case, the tribunal considered it relevant that the partners had all recently agreed to a partnership deed containing the retirement provision, a position which it noted was quite different from the unequal bargaining strengths inherent in an employment relationship. A harder line is likely to be taken in employment cases.

The tribunal ruled that a retirement age of 65 for partners in a small partnership was a proportionate means of achieving three legitimate aims:

  • to provide partnership prospects for associates to aid their retention,
  • to facilitate succession planning, and
  • to avoid the need to expel partners by performance management thus contributing to a congenial and supportive culture (although this may suggest an ageist assumption that some partners' performance will deteriorate with age).

The tribunal emphasised that the decision was particular to the firm concerned and the specific facts found. (Seldon v Clarkson Wright and Jakes, ET).

In contrast, a retirement age of 65 for recorders (who are part-time office-holders and from whom judges are selected) has been held to be unlawful. While the Ministry of Justice's aim to ensure a reasonable flow of new appointments into the judiciary was legitimate, the retirement age was not a proportionate means of achieving this.

The Ministry failed to produce any evidence that permitting recorders to continue to age 70 would affect its ability to produce sufficient suitable candidates for the judiciary. It could also have taken other steps to ensure younger recorders were given the experience required (eg, by reviewing case allocation or removing recorders who worked less than the minimum time commitment required for judicial appointment).

The decision highlights the importance of considering whether any less discriminatory means can be used to achieve the same aims. (Hampton v The Lord Chancellor and The Ministry of Justice, ET).

It is understood that both decisions are being appealed, so EAT guidance on this issue may not be far away. The level of evidence required for justification will be a key area. For example, in Seldon the tribunal was content to rely on evidence from the firm's partners of the importance of partnership prospects to associate retention, without requiring any more objective evidence or statistics to support it.