EAT confirms compulsory retirement at 65 is justified


The Employment Appeal Tribunal (EAT) has confirmed that compulsory retirement at the age of 65 can be justified.

More than seven years ago, the case Seldon v Clarkson Wright and Jakes raised a claim of age discrimination because Mr Leslie Seldon was forced to retire at age 65 from the law firm he worked for.

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 (ET) held that the provision in the deed was objectively justified by the aims of retention and recruitment, workforce planning and collegiality.

The ET stressed that, in this case, a balance needed to be achieved between the interests of the practice, the partners and the associates who aspired to partnership.

It found there was a narrow range of ages that would be proportionate to achieve two of the aims of retention and workplace planning.

Seldon appealed to the EAT in 2008, which 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.

Seldon appealed unsuccessfully to the Court of Appeal and Supreme Court, so the matter then returned to the ET.

It held that, while the firm might have selected other ages within the narrow range of ages (64 or 66) as the mandatory retirement age to achieve its two remaining aims, the selection of 65 was objectively justified.

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 has upheld the case and found that the age of 65 was proportionate. It confirmed that the fact it would be less discriminatory for the firm to have chosen another age did not prevent the age of 65 from being appropriate in this case.

It held that the tribunal had applied the correct test and that its conclusion was unimpeachable.

Eleanor Winslet, an associate at law firm Reed Smith, said: “Following the removal of the default retirement age, employers need to justify any retirement policy in place by showing that it is a proportionate means of achieving a legitimate aim.

“In Seldon, the EAT has found that it was proportionate for the firm to select a retirement age of 65, even though using a higher age could have a less discriminatory effect.

“The reasoning in this case may be useful to employers setting a retirement age, or considering other policies which may be potentially age-discriminatory, for example, benefits policies.”