Seldon v Clarkson Wright & Jakes
Elias J (President), Mr M Clancy and Mrs JM Matthias
Partnership deed – Compulsory retirement age – Partnership requiring appellant to retire at 65 in accordance with partnership deed – Appellant alleging age discrimination – Employment tribunal finding direct age discrimination objectively justified – Whether tribunal applying correct test for justification – Whether evidence supporting assumption of diminished performance at 65 – Appeal allowed in part
The appellant was a partner in the respondent firm of solicitors. He was compulsorily retired at the end of the year following his 65th birthday, n accordance with the terms of the partnership deed. The appellant alleged that this constituted discrimination and made a claim against the partnership for unlawful direct age discrimination.
The employment tribunal held that the compulsory retirement of a partner in a law firm was direct age discrimination under the Employment Equality (Age) Regulations 2006 and that the appellant had suffered adverse treatment as a consequence of his age. However, it also held that the discrimination could be objectively justified in that a compulsory retirement age was a proportionate means of achieving the legitimate aims of: (i) ensuring that associates had the chance to become a partner after a reasonable period to prevent them from leaving the firm; (ii) facilitating the planning of the partnership and workforce across individual departments by having a realistic long-term expectation as to when vacancies would arise; and (iii) limiting the need to expel partners by way of performance management, thereby contributing to the firm’s congenial and supportive culture. The tribunal also found that the discrimination was justified in part on the assumption that a partner’s performance would begin to deteriorate once he or she reached 65.
Partnership deed – Compulsory retirement age – Partnership requiring appellant to retire at 65 in accordance with partnership deed – Appellant alleging age discrimination – Employment tribunal finding direct age discrimination objectively justified – Whether tribunal applying correct test for justification – Whether evidence supporting assumption of diminished performance at 65 – Appeal allowed in partThe appellant was a partner in the respondent firm of solicitors. He was compulsorily retired at the end of the year following his 65th birthday, n accordance with the terms of the partnership deed. The appellant alleged that this constituted discrimination and made a claim against the partnership for unlawful direct age discrimination.The employment tribunal held that the compulsory retirement of a partner in a law firm was direct age discrimination under the Employment Equality (Age) Regulations 2006 and that the appellant had suffered adverse treatment as a consequence of his age. However, it also held that the discrimination could be objectively justified in that a compulsory retirement age was a proportionate means of achieving the legitimate aims of: (i) ensuring that associates had the chance to become a partner after a reasonable period to prevent them from leaving the firm; (ii) facilitating the planning of the partnership and workforce across individual departments by having a realistic long-term expectation as to when vacancies would arise; and (iii) limiting the need to expel partners by way of performance management, thereby contributing to the firm’s congenial and supportive culture. The tribunal also found that the discrimination was justified in part on the assumption that a partner’s performance would begin to deteriorate once he or she reached 65. The appellant appealed to the Employment Appeal Tribunal (EAT), at which the Equality and Human Rights Commission (EHRC) was permitted to make representations as intervener.Held: The appeal was allowed in part.Applying the principles of legitimate aim and proportionality, the tribunal was entitled to find that the principle of compulsory retirement was justified and achieved specified legitimate objectives and that the partnership could properly adopt a rule requiring partners to retire at a specified age: Elias v Secretary of State for Defence [2006] EWCA Civ 1293; [2006] 1 WLR 3213 considered.Furthermore, contrary to the submissions of the EHRC, the correct test for assessing justification in the context of direct age discrimination was the same standard as that applied when considering indirect discrimination rather than the higher standard adopted by the European Court of Human Rights.However, the tribunal had not been entitled to find that the partnership had discharged the onus of proving that it was justified in fixing the age at which a partner should retire at 65 on the assumption that performance would deteriorate at that age. There was no evidential basis for that assumption, which was neither reasonable nor self-evident. However, since the tribunal had not based its decision upon that ground alone, the case would be remitted to the tribunal so that it could reconsider the question of justification afresh. Per curiam: The need to have a compulsory retirement age to achieve the congeniality objective could, in principle, carry some weight where other objectives applied. Although the respondent could not rely directly upon article 30 of Council Directive 2000/78/EC, which provided that the retirement of employees at 65 was not unlawful, it had some limited significance in circumstances where a partnership could justify the adoption of compulsory retirement at a given age. Richard O’Dair (instructed by BP Collins Solicitors, of Gerrards Cross) appeared for the appellant; Thomas Croxford (instructed by Clarkson Wright & Jakes, of Orpington) appeared for the respondent; Declan O’Dempsey (instructed by the legal department of the Equality and Human Rights Commission, of Manchester) appeared for the intervener.Eileen O’Grady, barrister
