Seldon v Clarkson Wright & Jakes (A Partnership) & Anor

In age-discrimination claims, justification of a retirement rule must be assessed separately from justification of national legislation permitting age-based differences. An employer or partnership need not show that its aim is itself a social-policy objective. It may rely on aims consistent with the social or labour-market policy underlying the legislation, including workforce planning, opportunities for younger workers and preserving a collegial workplace. The court must ask whether, at termination, the rule pursued legitimate aims and was a proportionate means of achieving them, and whether its application to the individual was justified. Once a rule is justified, enforcement will ordinarily require little further justification, subject to exceptional cases. It is not fatal that another age or less discriminatory arrangement could have been chosen, or that the aim was not expressly formulated when the rule was introduced.

Mr Seldon, a solicitor and partner, was compulsorily retired at 65 under the partnership deed. He claimed direct age discrimination under the Employment Equality (Age) Regulations 2006. The Employment Tribunal found less favourable treatment but held the retirement clause justified by aims concerning associate progression, workforce planning and collegiality.

The Employment Appeal Tribunal, in UKEAT/0063/08, upheld most of that reasoning but held that collegiality did not justify fixing the age at 65 and remitted the matter. The central issues before the Court of Appeal were whether the firm’s aims had to be social-policy aims, whether the rule and its application were proportionate, and whether the tribunal had erred on justification, consent, evidence and remittal.

1. Appeal dismissed. The Court of Appeal agreed with the Employment Tribunal and the Employment Appeal Tribunal on the material issues. The appeal was dismissed unanimously.
2. Nature of the legitimate aims. The requirements derived from article 6(1) of Council Directive 2000/78/EC concerned the justification of national legislation, not the direct justification of an individual employer’s decision. A partnership therefore need not show that its own aim was purely a social-policy aim. Its aims could be mixed, provided they were consistent with the social or labour-market policy underpinning the statutory scheme. Creating opportunities and promotion prospects for younger workers, facilitating workforce planning, preserving a congenial and supportive culture, and enabling retirement with dignity could all be legitimate aims. The arguments concerning both “dead men’s shoes” and collegiality therefore failed.
3. Two interrelated questions. Under regulations 3 and 17 of the Employment Equality (Age) Regulations 2006, the relevant termination or expulsion required consideration of both whether the retirement rule was justified at the date of termination and whether its application to the individual was justified. The rule had to pursue legitimate aims and be a proportionate means of achieving them. Its effect on recruitment and promotion over the period since introduction was relevant. Once the rule was justified, applying it would ordinarily require little further justification because enforcement formed part of the means of achieving the aim. Exceptional circumstances might produce a different result, but this was not such a case.
4. Proportionality. A different retirement age might be less discriminatory to persons reaching 65, but more discriminatory to persons reaching the alternative age. The possibility of choosing another age therefore did not make a retirement age unlawful. The question was whether 65 was proportionate to the legitimate aims. A conditional alternative dependent on a prospective partner being available would not provide the same certainty for recruitment and promotion.
5. Other grounds. A legitimate aim need not have been expressly identified when the measure was introduced. Agreement to the clause by parties of equal bargaining power was a legitimate consideration, though not conclusive. Evidence from comparable firms was not essential. It was also permissible and sensible to remit the matter to the same Employment Tribunal where no unfairness had been shown.

• Employment Appeal Tribunal. In UKEAT/0063/08, the tribunal upheld the Employment Tribunal’s finding that the retirement treatment was justified, except in relation to collegiality as an aim supporting age 65, and remitted the matter to the same Employment Tribunal.
• Court of Appeal (Civil Division). The appeal was dismissed. The Court agreed with the lower tribunals on the substantive justification issues and rejected the challenge to remittal to the same tribunal.