Back in June 2013 I reported, in hindsight somewhat optimistically, the “last knockings” of the saga formerly known as Seldon – v – Clarkson Wright & Jakes http://www.employmentlawworldview.com/miss-collegiality-invalid-justification-in-uk-age-discrimination-claims/. This is the age discrimination claim by a law firm partner obliged to retire at 65, first brought in 2007 and finally killed off, we had thought, by the Tribunal’s decision last year that if 65 was an age where the legitimate aims of the firm’s original mandatory retirement agreement were satisfied, it did not matter if other ages would have done so also.
Impressively undaunted by his consistent failure to persuade the Employment Tribunal, the Employment Appeal Tribunal, the Court of Appeal, the Supreme Court, and then the Employment Tribunal again that he had been discriminated against, Mr Seldon then launched a further appeal to the EAT on this point.
CWJ abandoned partnerial collegiality as one of its legitimate aims during the initial climb up the judicial ladder and so now had to show that 65 was appropriate to support its remaining objectives of associate retention and workforce planning. The Employment Tribunal took the view that the determination of a mandatory retirement age to achieve those two aims “has to be a balance between the interests of the practice, the partners and of associates who aspire to partnership”, and noted that “the lower the retirement age, the more harm to the partners who are required to retire, and the higher the retirement age, the more harm to the associates who may leave”.
Mr Seldon accepted the principle but said on appeal that 65 was the legitimate age for that purpose only if no less discriminatory age could be found. From his perspective at 65, the ages of 68 or 70 (no mention was made of 69) seemed less discriminatory, though what his view would be if and when required to retire at one of those ages instead is unclear. Therein lay Mr Seldon’s problem, said the EAT. Some later age than 65 might be less discriminatory to Mr Seldon at a given point (i.e. when he was 65) but would be more so to someone older or indeed to Mr Seldon himself a few years hence.
Subject to establishing a legitimate aim, the maintenance of a fixed retirement age is still lawful. However, if you could never pinpoint a precise age for this purpose because retirement a day or a week or a year later might be less discriminatory at that moment in time (but open to the same argument again that day or week or year later) then you could never actually fix your retirement date at all. The EAT concluded in consequence that there had to be a point where the employer had got close enough. It did not have to show that no other proposal was possible, merely that its chosen age (here 65) was among those identified by the balancing exercise referred to above.
That sounds almost too simple to be true, and it is. The employer also has to produce some evidence to back up its assertions about the balance of disadvantage, but how? Here the EAT accepted that the evidence may be less compelling, because of the necessary “spectrum of speculation around the effect of altering the age from one figure to another…Concepts such as retention and workforce planning…depend on assumptions and estimates as to how people will act or react, not in general labour force terms…but in relation to the personalities and practice with which a firm is concerned”.
So before you re-consider your abolition of a default retirement age on the back of that latitude, do remember that the decision here applies only to the very specific circumstances and career ladder of a professional partnership, and that any other business seeking to maintain such an age will need to provide its own evidence of the proportionality of its chosen retirement age to its aims in having one in the first place.