Forced retirement allowed

A former senior partner of a law firm has lost his Supreme Court appeal against the firm’s decision to force him to retire at the age of 65.

Orpington-based Clarkson Wright & Jakes were justified in requiring Leslie Seldon to retire, in accordance with the terms of the partnership deed, the court unanimously held, in Seldon v Clarkson Wright and Jakes [2012] UKSC 16. However, the court referred his case back to the employment tribunal “to consider whether the choice of a mandatory age of 65 was a proportionate means of achieving the legitimate aims of the partnership”.
 
The case was held alongside that of Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15, in which a legal officer was indirectly discriminated against by a new policy that introduced a law degree requirement for senior posts. The court held that the discrimination was unlawful and asked the tribunal to re-consider West Yorkshire’s justifications.
 
Seldon covers justification of direct discrimination and Homer indirect discrimination. Both cases concerned the Employment Equality (Age) Regulations 2006 (SI 2006/1031), which were re-enacted in the Equality Act 2010.
 
Age discrimination in the workplace is unlawful unless it can be justified as a “proportionate means of achieving a legitimate aim”.
 
According to the Equality and Human Rights Commission (EHRC), which acted for Seldon, the judgments offer helpful guidance on when direct age discrimination may be justified. This is: that aims based on intergenerational fairness or dignity, such as planning for the departure and recruitment of staff, have succeeded in the courts; and the means used to achieve an aim must be proportionate to the aim and necessary to achieve it.
 
John Wadham, EHRC general counsel, says: “Every employer must think carefully about whether it really needs to have a policy that directly or indirectly discriminates against people based on their age.
 
“The court has made it clear that such policies must be justified on a case by case basis.”
 
Rachel Dineley, employment partner at DAC Beachcroft, says the case “deserves careful consideration, not only from professional services firms and other partnerships, but all employers who need to justify any prospectively age-discriminatory practice”.
 
Robert Capper, partner at Harrison Clark, says: “At last, professional partnerships now have guidance about how to handle the important but delicate issues of retirement and in turn succession planning.”