Seldon v Clarkson, Wright & Jakes Secretary of State for BIS 2010 EWCA Civ 899

In the first Court of Appeal decision on the justification of a retirement age it has held that a rule requiring Mr Seldon, who was a partner in Clarkson, Wright & Jakes, to retire at 65 was a proportionate means of achieving the legitimate aims of workforce planning and providing associates with promotion opportunities so it was not discriminatory. In this case Mr Seldon had agreed and accepted the terms of a partnership deed which provided for a mandatory retirement age of 65 and he was of equal bargaining power with the partnership.

Key point: 65 was a fair and proportionate cut off point. This case however concerned a partnership and the lawfulness of that retirement age may not necessarily apply in an employment context.

The Government intends to remove the default retirement age of 65 for all employees from October 2011 and is currently consulting on this – see below. If the default retirement age is removed, employers will have to decide whether to have a retirement age at all. If 65 is retained it will need to be objectively justified as per the Seldon case. If there is no fixed retirement age then employees will leave at their own choosing unless they are dismissed for a fair reason. The Government states that most employees work on for only 2 years’ more and work performance up to the age of 70 is not affected. Some employers already operate as if there were no default retirement age without problems.