Retirement at 65 Justified – As the Law Was Then

In the long-running case of Seldon v Clarkson, Wright and Jakes, the Employment Tribunal (ET) has ruled that the inclusion in a law firm’s partnership agreement of a clause that required partners to retire at 65 was justified in the circumstances.



A former senior partner of the firm claimed that the provision, which had been agreed by all the partners, constituted direct discrimination under the Employment Equality (Age) Regulations 2006 – now replaced by the Equality Act 2010.



He pursued his case as far as the Supreme Court, which held that the test for justifying discrimination on the ground of age is narrower for direct discrimination than for indirect discrimination. To defeat a claim of direct discrimination, the employer must show that the treatment stems from an aim that can be objectively and reasonably justified as pursuing a legitimate social policy derived from the EC Equal Treatment Directive.



The Supreme Court dismissed the former partner’s appeal. Whilst his retirement at age 65 was, on the face of it, direct discrimination, the firm’s reason for having in place a mandatory retirement age for all partners was capable of justification. The ET had identified three objectives – staff retention, workforce planning and limiting the need to expel partners by way of performance management – which met the test of being based on legitimate social policy aims.



The case was remitted back to the ET, however, to consider whether the choice of 65 as the specific age at which partners were required to retire was a proportionate means of achieving the aims in this case.



The ET found that the retirement age of 65 was fair and proportionate in the circumstances. However, the case was decided on the law as it stood when the former partner retired in 2006, when there was still a default retirement age of 65. The ET was clear that, based on the law as it stands today, it might well have reached a different decision.