Seldon v Clarkson Wright & Jakes

On 13 May 2014, the Employment Appeal Tribunal heard the second round appeal in the case of Seldon v Clarkson Wright & Jakes. As Langstaff J put it when commencing his judgment, “There is a long history, well known to employment lawyers, in relation to this case”.

Mr Seldon had been retired as a partner in December 2006 pursuant to a mandatory retirement provision contained within the firm’s partnership deed. In 2007, the Employment Tribunal held that the provision in the deed was objectively justified by the aims of retention and recruitment, workforce planning and collegiality. On appeal by Mr Seldon, in 2008 the first EAT held that the third aim did not justify a retirement age of 65 because there was no evidence that the performance of partners might diminish by the age of 65 and that it could not be sure whether the ET would have reached the same conclusion on the basis of the other aims. For that reason, it remitted the case to the same tribunal to determine whether the mandatory retirement provision could be justified by just the first two aims.

Mr Seldon appealed unsuccessfully to the Court of Appeal and Supreme Court and so the matter then returned to the same ET. It held that, whilst the firm might have selected other ages within a narrow range (64 or 66) as the mandatory retirement age to achieve its two remaining aims, the selection of 65 was objectively justified.  In part, this was because 65 was the age to which the partners had consented and that was also the retirement age applying to the firm’s employees by reason of the Default Retirement Age which then applied.

Mr Seldon appealed once more to the EAT, principally on the basis that if the firm’s aims could also have been achieved by a retirement age of 66 then the firm could not justify maintaining a lower retirement age for partners.

The EAT held that the Tribunal had given itself an impeccable self-direction in law and was entitled to reach its conclusion on the evidence before it. As to the selection of a particular retirement age, the EAT noted that if Mr Seldon’s arguments were correct, no retirement age could ever be justified because the selected retirement age plus a day would always be less discriminatory than the chosen retirement and thus the chosen retirement age would not be the least discriminatory means of achieving the aims. However, it held that the proper analysis was to consider whether the chosen retirement age was reasonably necessary to achieve the aims, given the realities of setting a bright-line date. It held that the Tribunal had applied the correct test and that its conclusion was unimpeachable.

Clarkson Wright & Jakes was represented throughout by Thomas Croxford, with Emily Neill appearing as his junior in the Supreme Court, and thereafter. Dinah Rose QC and Emma Dixon appeared for the Secretary of State, supporting the submissions of the firm, in the Court of Appeal and the Supreme Court, and David Pievsky also appeared in the Court of Appeal.  All listed counsel are members of Blackstone Chambers.