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Employment Appeal Tribunal (EAT) upholds Seldon

Gillian Melville
14th Jul 2014

The Employment Appeal Tribunal (EAT) has recently upheld the decision that a law firm’s compulsory retirement age of 65 was not discriminatory as it could be objectively justified as a proportionate means of achieving a legitimate aim.

 

In the case of Seldon v Clarkson Wright & Jakes Mr Seldon was a partner in a law firm who retired him at 65 as required by his partnership deed. Seldon challenged this at the employment tribunal. His case failed as the respondent was able to objectively justify its chosen mandatory retirement age of 65 by reference to the following legitimate aims:

  1. Retention (associates would not stay at the firm if there were no clear prospects of promotion to partner);
  2. Planning (mandatory retirement at 65 allowed for workforce planning, and gave a clearer idea as to when vacancies for partner would open up); and
  3. Collegiality (creating a better working environment by limiting the expulsion of partners through performance management)

The Tribunal concluded that to achieve these aims a compulsory retirement age range of 64-66 was proportionate for the following reasons:

  1. Seldon had consented to the firm’s retirement age in his partnership deed;
  2. the (since-repealed) Default Retirement Age (DRA) which allowed employers to compulsorily retire employees at the age of 65 was then in place; and
  3. 65 coincided with the state pension age and ECJ case law on retirement ages.

Seldon appealed to the EAT on the following grounds:

  1. That the respondent could have used a less discriminatory age i.e. 68 or 70 to achieve their legitimate aim and so it was not proportionate
  2. That the Tribunal had erred in law in presenting the range of 64-66 when determining proportionality

In rejecting Seldon’s appeal the EAT held that the Tribunal had not erred in law and that if Seldon’s argument that each day later than 65 would ‘discriminate less’ was correct then no exact date could ever lawfully be chosen. Instead, the EAT confirmed that employers must find a reasonable balance between the discriminatory effect of choosing a particular retirement age and the success in achieving its legitimate aims.

 

Read our expert comments on the case here.

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