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Case Law Update – Fixing a retirement age: Seldon v Clarkson Wright & Jakes

The law

Forcing an employee to retire at a certain age is direct age discrimination.  A business can lawfully operate a fixed retirement age only if it can show that it had legitimate aims and having a fixed retirement age is a proportionate means of achieving those aims.

The case

Mr Seldon was a partner with Clarkson Wright & Jakes, a firm of solicitors.  He brought a claim of age discrimination against them when he was forced to retire at age 65 under the partnership’s rules.

The case proceeded to the Supreme Court and in 2012 it held that the partnership could justify having a mandatory retirement age but did not deal with whether the age chosen of  65 was appropriate.  They said that had to be considered again by an Employment Tribunal.  This week an Employment Tribunal did just that and found that in this case, 65 was an appropriate retirement age.

The Tribunal held that having a mandatory retirement age of 65 was a proportionate means of achieving three legitimate aims:

1. retention – junior members would stay at the firm only if they knew they had promotion opportunities and by retiring older staff it created room at the top;

2. business planning – there was a need to manage staffing levels in order to create a long term strategy for the business; and

3. collegiality – the need to encourage good working relationships and allow departures of older staff with dignity.

In practice

This is not a green light for every employer to have a retirement age of 65.  Justification depends on fact-sensitive matters relating to the particular employer and the role performed by the employee.

In addition it is clear that society is changing too.  The case was decided on the basis of an assessment at 2006 before the removal of the default retirement age in 2011.  Tribunals are mindful of the fact that people are working until they are older and that the government is slowly pushing back pension age, by 2040 the pension age will be 70.

For further advice or information please contact Sarah Fitzpatrick by email at sarah.fitzpatrick@collingwoodlegal.com or by telephone on 0191 282 2888.

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