Partner issues continue to preoccupy the appeal bodies and employment tribunals.  On 13 May, the case of Seldon v Clarkson Wright & Jakes reappeared in the Employment Appeal Tribunal.  It may be remembered that Mr Seldon retired as a partner in December 2006 under a mandatory retirement provision of his law firm's deed (age 65). In the first round of litigation, it was held that the retirement age could be objectively justified by the aims of

  1. Retention and recruitment
  2. Workforce planning
  3. Collegiality  

On appeal, the third aim was disapproved owing to lack of evidence and it was held unclear whether the tribunal would have reached the same conclusion on the basis of the other two aims, so the case was sent back down to the tribunal. Having gone through one complete round of appeals, on this appeal, Mr Seldon's grounds were mainly on the basis that the firm's aims could also have been achieved by a retirement age of 66, say, or 64. 

In this decision, the EAT held that the tribunal was entitled to uphold 65 on the evidence: it noted that if Mr Seldon were correct in his arguments, no retirement age could ever be justified, because the firm's chosen retirement age plus 1 day would always be less discriminatory than the chosen date, thus falling foul of the principle that firms (if they discriminate) should choose the least discriminatory means of achieving aims. The EAT accepted the practical necessity for setting a bright-line date and approved 65 as reasonably necessary to apply the chosen aims.

The litigation may continue…

Meanwhile firms need to be clear as to the reasons for any mandatory retirement ages and satisfied that their chosen age is reasonably necessary for achieving those, and the least discriminatory way of doing so (if it is discriminatory).