In the 2007 case of Seldon v Clarkson Wright and Jakes (ET/1100275/2007), an employment tribunal held that the compulsory retirement of a partner in a law firm was direct age discrimination under the Employment Equality (Age) Regulations 2006 (the Regulations). However, the tribunal went on to find that the discrimination could be objectively justified since a compulsory retirement age was a proportionate means of achieving a legitimate aim in that:

  • associate solicitors were given an opportunity of partnership after a reasonable time thus encouraging them not to leave the firm;
  • it helped the planning of the partnership by having a realistic idea of when vacancies would arise; and
  • it limited the need to expel partners on the ground of underperformance.

Seldon challenged this ruling and the case was subsequently heard by Mr Justice Elias, President of the EAT. The appeal also had the backing of the Equality and Human Rights Commission, which was challenging what it described as the assumption that people become more likely to under-perform as they get older.

The EAT quashed the original tribunal decision on the basis that insufficient evidence had been presented to lead to the compulsory retirement age of 65 being justified in the aim to limit the need to expel partners on the grounds of under-performance.

Comment: this is not necessarily a victory for the original claimant as he still needs to get the other two objectives accepted by the original tribunal overturned. Employers will be encouraged by the thorough and sensible approach taken by the tribunals in considering age discrimination claims. The Court of Appeal is now set to hear legal arguments on whether employers can justify age discrimination for their own objectives, or whether they are required to show wider social policy objectives.

As noted above, the level of the compulsory retirement age was due for Government review in 2011 and it has now been announced that this will be brought forward by one year. The review is expected to lead to a higher default retirement age than the current 65, or perhaps even its abolition.

The TUC has responded positively to the Government’s announcement, and has welcomed the early review. Its view is that it cannot be right for an employer to be able to sack an employee simply for reaching a certain age. However, the Confederation of British Industry voiced its disappointment, saying that having a default retirement age helped staff to begin the process of deciding when it was right to retire, and helped employers to plan ahead.