EAT upholds UK law firm's "proportionate" mandatory retirement age of 65

In a long-running case Leslie Seldon, a former partner with a firm of solicitors, had appealed an employment tribunal's finding that 65 was a "reasonably necessary" retirement age, notwithstanding the fact that it could have selected "some other less discriminatory age". The Supreme Court, which is the UK's highest court, held in 2012 that a compulsory retirement age could be justified where it was "founded on legitimate social policy aims".

Mr Justice Langstaff, president of the EAT, said that the tribunal had been "entitled" to conclude the 65 was an appropriate age.

"The fact that it might ... have identified a different date within very much the same age range but which was slightly later does not mean that there was an error of law," he said.

"The word 'necessary' is qualified by the word 'reasonably'. This qualification is essential if one is looking for a particular age. As is obvious, if it were to be said that a day later than a given age would discriminate less, as it would if the interests of the retiree were to be considered, it would therefore be wrong in law not to take a day later as the date: and if, a day later still, the same would apply - but then as a matter of principle it would seem that no date could be chosen lawfully because any date would be capable of being rendered unlawful by the argument that a slightly later date would serve just as well," he said.

"An age is necessarily expressed as one point in time. The issue for the tribunal is to determine where a balance lies: the balance between the discriminatory effect of choosing a particular age ... and its success in achieving the aim held to be legitimate. That balance, like any balance, will not necessarily show that a particular point can be identified as any more or less appropriate than another particular point," he said.

Leslie Seldon, a partner in law firm Clarkson Wright and Jakes, had claimed that his forced retirement in 2006 was an act of direct discrimination under the Age Equality Regulations, which were replaced in 2010 by the Equality Act. Direct discrimination occurs when a person is treated less favourably than another would have been in comparable circumstances; however, the relevant regulations and European law create an exception where the treatment is "objectively and reasonably justified by a legitimate aim" and the means of achieving that aim are "appropriate and necessary".

In 2012, the Supreme Court ruled that the firm could justify a compulsory retirement age for its partners on the grounds of enabling them to retain other staff and allowing them to plan for the retirement of partners. It referred the case back to the employment tribunal to consider whether the age of 65, as specified in the firm's deed of partnership, was "proportionate" as opposed to selecting another age. Ruling that it was, the tribunal judge said that there had to be a balance between "the needs of the firm and of the partners and of the associates", the last of whom could have seen the retention of older partners as "a limitation upon the opportunity for advancement".

Commenting on the employment tribunal's decision last year, employment law expert Christopher Mordue of Pinsent Masons, the law firm behind Out-Law.com, said that the decision was unlikely to make it easy for firms to justify mandatory retirement ages. The national default retirement age (DRA) of 65 was abolished in 2011.

"The key justification for the retirement age in this case was that it created openings for associates to be promoted to partnership, not only assisting succession planning but enabling the recruitment and retention of associates who would leave the firm if they could see no opportunity for career advancement," he said. "While similar arguments can be used in the employment context, they are unlikely to be as clear cut outside of a partnership structure with a very linear internal career progression pathway."

"The process of justification has to be evidence-led and the employer would need to demonstrate very clearly, and in a concrete way, the problem created by operating without the retirement age. Furthermore, the employer will have to show that the chosen age is proportionate to achieving that objective, meaning that it has to be clear why the same objective cannot be achieved not only without any retirement age but also without a higher retirement age," he said.