26 April 2012
The Supreme Court have clarified the extent to which employers and partnerships can justify direct age discrimination in relation to retirement. It is only in relation to age that direct discrimination is capable of justification.
Mr Seldon was a partner in the law firm Clarkson Wright and Jakes. The partnership agreement provided for mandatory retirement at 65. Mr Seldon asked to continue beyond his mandatory retirement date but this was refused. He brought a claim in the Employment Tribunal for age discrimination
The tribunal accepted that Mr Seldon’s enforced retirement at 65 was direct age discrimination. The partnership sought to justify its mandatory retirement age by reference to various aims, including to enable effective succession planning, create career progression opportunities for associate solicitors, and to avoid performance management of older workers. This was the central battleground in the case all the way up to the Supreme Court.
The Supreme Court, in dismissing Mr Seldon’s appeal, has now clarified the test for justifying direct age discrimination. Broadly, an employer must show that:
- it has a legitimate aim in having a particular retirement age in the context of the employer’s business; so for example, boosting the recruitment of young people to achieve a balanced workforce could be a legitimate aim, but it would not be so if there was in fact no problem recruiting young people in that particular business;
- the aim has a sufficient public interest element or is connected to social policy considerations; and
- the measures used to achieve the aim are proportionate, in that they do not go further than is necessary to achieve the aim.
The Supreme Court dismissed Mr Seldon’s appeal, finding that Clarkson Wright and Jakes had shown that its aims were legitimate. However the question of whether the retirement age of 65, rather than some other age, was necessary to achieve the identified aims in Mr Seldon’s case has been sent back to the tribunal.
The decision is disappointing for employees generally as well as for Mr Seldon, who was not underperforming nor was his position needed for younger colleagues. The Court accepted that the firm’s general aims of promoting succession planning and avoiding performance management were legitimate. However, whether the chosen retirement age of 65 was a proportionate and appropriate way of achieving these aims is still to be determined by the Tribunal.
Mr Seldon may yet be successful in showing that his firm was wrong to force him to retire at 65.
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