Seldon v Clarkson Wright & Jakes (No 2)

Age discrimination justification is fact-sensitive. Where a fixed retirement age is an appropriate means of pursuing legitimate aims, the employer need not establish that the selected age is the only possible age or that every later age would fail. The tribunal must make its own judgment on proportionality, balancing the discriminatory impact against the legitimate aims and the reasonable needs of the business.

A narrow range of ages may satisfy the aims. The selection of one age within that range is not unlawful merely because another age would be less discriminatory to some employees. Relevant contextual factors may include consent, the prevailing default retirement age, pension arrangements and wider workforce considerations.

The claimant, formerly a partner in a solicitors’ practice, was required to retire at 65 under the partnership deed and alleged direct age discrimination.

The Employment Tribunal initially upheld the retirement provision. Earlier appeals reached the Employment Appeal Tribunal, the Court of Appeal and the Supreme Court. The matter was remitted to the Employment Tribunal to determine whether retirement at 65, rather than another age, was a proportionate means of achieving the legitimate aims of retaining associates and facilitating workforce planning.

The Tribunal again upheld the provision. The central issue on appeal was whether it had erred in law in finding that 65 was reasonably necessary and proportionate.

1. Appeal dismissed. The Employment Tribunal had been entitled to find that retirement at 65 was a proportionate means of achieving the legitimate aims of associate retention and workforce planning.
2. The statutory requirement that a measure be a proportionate means of achieving a legitimate aim does not require the employer to show that no other proposal is possible. The tribunal must make its own judgment, based on a fair and detailed analysis of the business and working practices. The standard is not the margin of discretion or range of reasonable responses rejected in Hardy & Hansons plc v Lax.
3. Once it is accepted that a fixed retirement age is capable of achieving the legitimate aims, the tribunal must select an appropriate point by balancing the discriminatory effect against the success of the measure in achieving those aims. More than one age may fall within a narrow range of reasonably necessary ages. The fact that a later age would be less discriminatory to a person reaching the selected age does not itself make the selected age unlawful.
4. The assessment was necessarily fact-sensitive. Evidence concerning associate retention and workforce planning might involve assumptions and estimates. The Tribunal was entitled to rely on the evidence accepted in the earlier proceedings, additional evidence and its assessment of the relevant labour-market context. It did not have to identify one decisive fact or address every detail separately.
5. The Tribunal was entitled to take account of the partners’ consent, the default retirement age applicable at the time, state pension age and the broader context of retirement arrangements. Collegiality was not treated as independently requiring age 65, but it was relevant in confirming that a different age need not be preferred.
6. The appeal court could interfere only for an error of law. No such error was shown. The Tribunal’s conclusion was a factual assessment supported by evidence and consistent with the earlier appellate decisions.

• Supreme Court: The earlier appeal culminated in a judgment reported at [2012] UKSC 16.
• Court of Appeal: The preceding appeal was decided at [2011] ICR 60.
• Employment Appeal Tribunal: The earlier EAT decision was reported at [2009] IRLR 267. The matter was remitted to the Employment Tribunal, whose 2013 decision was appealed to this Tribunal.
• Employment Appeal Tribunal: The present appeal was dismissed.