The drawn-out saga of Seldon’s direct age discrimination claim has finally come to its conclusion. Whilst this claim has been of particular interest to the legal profession the tribunal’s ruling is relevant to all industries.
Mr Seldon was a partner at law firm, Clarkson Wright and Jakes. In 2006, the year when Mr Seldon reached the age of 65, he was forced to retire under the terms of the firm’s partnership deed that provided for the mandatory retirement age. Mr Seldon then brought a claim under the Employment Equality (Age) Regulations 2006, which was in force at the time (before relevant provisions of the Equality Act 2010 came into force) and which contained provisions to protect both employees and partners from age discrimination.
Age discrimination is not unlawful if an employer can show it is a “proportionate means of achieving a legitimate aim”. In defending the age discrimination claim, the law firm gave the following justifications:
- Retention aim: ensuring that associates were retained by being able to offer them partnership opportunities after a reasonable time.
- Planning aim: facilitating planning of the partnership and workforce by having a realistic long term expectation as to when vacancies would arise.
- Collegiality aim: limiting the need to expel partners through performance management and thus contributing to the congenial and supportive culture of the firm.
The case progressed to the Supreme Court in 2012, which held that the aims were legitimate but referred the matter back to the Employment Tribunal to consider whether retirement at 65 was appropriate.
On 28 May 2013, the Employment Tribunal ruled the retirement age was a proportionate means of achieving the legitimate aims. In coming to this determination, the Tribunal stated that it had to weigh up the needs of the firm against the harm caused by the discriminatory act. The default retirement age had to reflect the firm’s need to make future plans to ensure there were partners in place with relevant experience and which reflected the expectations of partners and associates, to ensure succession and fulfill the needs of the partnership. The Employment Tribunal was also swayed by the fact that Mr Seldon had actually agreed to the terms of the partnership deed and, thus, his discrimination claim failed.
Although Clarkson Wright & Jakes have succeeded in every step of the claim against them, this case does not give employers the green light to compulsorily retire employees at a certain age. In making its ruling, the Employment Tribunal did make clear that the outcome of this case might have been different if the dispute had arisen after the abolition of the default retirement age (which only applied to employees) in 2011 and following the Government’s plans to change the state pension age. Careful consideration must be given as to whether a mandatory retirement age set by a company is for a legitimate aim, which will vary between different roles and industries.