Seldon (Appellant) v Clarkson Wright and Jakes (A Partnership) (Respondent)

The Supreme Court has ruled that a mandatory retirement age in a partnership agreement can be justified age discrimination. Mr Seldon was a solicitor and partner in the firm Clarkson Wright and Jakes. In accordance with the terms of the partnership, he was required to retire at 65. He claimed discrimination on the grounds of age. The Supreme Court held that the aims pursued by the firm in adopting a mandatory retirement age, namely staff retention, workforce planning and limiting the need to expel partners by way of performance management, were legitimate aims capable of justifying direct age discrimination in general and a mandatory retirement age in particular.

The Court held that there are two different kinds of legitimate objectives that have been sanctioned by the ECJ; namely inter-generational fairness and dignity. The former encompasses recruitment, retention and the sharing of limited opportunities between generations. The latter includes the more controversial aims of avoiding the need to dismiss older workers on grounds of incapacity or underperformance and also the avoidance of costly and divisive disputes about those issues.

The Court also held that the means chosen to implement those objectives have to be appropriate and necessary which will require careful scrutiny of measures to ensure that they in fact meet the objectives and that other, less discriminatory, measures are not possible.

As to the question of whether it is the rule itself, such as a mandatory retirement age, which needs to be justified or the application of the rule to a particular individual taking into account their personal circumstances, the Court held that, in general, once a rule is justified, the treatment flowing from the application of the rule will usually be justified.

Lastly, the Court held that the agreement of a rule between partners is of some relevance to the question of justification as is the fact that employees may have taken advantage in the past of the retirement of their seniors by virtue of a mandatory retirement age.

This is the first substantial case seeking to justify a mandatory retirement age for a partnership. As expressly recognised by the Supreme Court, the abolition of the designated retirement age has placed employees in the same position as partners, such that the principles set down in Seldon will also be relevant to that wider section of the working population.

Thomas Croxford and Emily Neill represented the partnership, Clarkson Wright and Jakes.
Dinah Rose QC and Emma Dixon represented the Secretary of State, intervening.

For the full judgment on BAILII click: http://www.bailii.org/uk/cases/UKSC/2012/16.html