Seldon v Clarkson Wright & Jakes

This is the first EAT decision on whether a compulsory retirement age is a partnership deed is justifiable. The EAT has given detailed guidance on many of the issues surrounding objective justification.

The EAT upheld the Employment Tribunal’s findings that the partnership had legitimate objectives that included ensuring associates have the opportunity of partnership after a reasonable period, facilitating the planning of the partnership by having a realistic long term expectation as to when vacancies will arise and maintaining a congenial and supportive working environment. It held that each of these aims was capable of justifying a mandatory retirement age.

Moreover, the EAT upheld the reasoning of the Tribunal as to the test for objective justification in the context of direct discrimination, in particular it held that there need be no conscious consideration of the justification at the time of the act alleged to amount to discrimination and that the test for justification was the same as for indirect discrimination rather than the higher standard imposed by the European Court of Human Rights.

However, the EAT was not satisfied that there was evidence to support the contention that there was an increased risk that the performance of workers was likely to tail off at 65. As such, the pursuit of congeniality did not justify compulsory retirement at 65.
 
In these circumstances, the EAT remitted the case back to the Employment Tribunal to consider whether the compulsory retirement age was justified by the first two legitimate objectives on their own or in conjunction with the, on the evidence, rather less weighty objective of congeniality. In doing so, the Tribunal was entitled to consider the significance of the fact that the normal retirement age for other workers is 65.

Tom Croxford appeared for Clarkson Wright & Jakes.