The latest judgment is out in the long-running case of Seldon v Clarkson Wright & Jakes, a legal saga that is starting to look rather Dickensian in some respects. The Employment Appeal Tribunal delivered an oral judgment yesterday; we await the written judgment in due course.
Aged 65, Mr Seldon was compulsorily retired from Clarkson Wright & Jakes, the law firm in which he was a partner, way back in 2006. He alleged age discrimination. The firm argued that any discrimination was objectively justified.
Having gone all the way up to the Supreme Court, back down to the Employment Tribunal and then up again to the EAT, yesterday's instalment was reportedly that:
- The EAT upheld Clarkson Wright & Jakes’s remaining two objective justification defences, namely the potentially legitimate aims of retention and recruitment (ie attracting and retaining solicitors who aspired to equity partnership) and workforce planning. A third collegiality argument was abandoned by the firm due to lack of evidence in this case linking ageing with under-performance (that argument having previously been rejected by the EAT in 2008).
- Whilst the firm might also have selected, say, 64 or 66 as the mandatory retirement age to achieve its aims, in reality it had to select a “bright-line date” and 65 was objectively justified in the circumstances. The EAT noted that if Mr Seldon’s arguments were correct, no retirement age could ever be justified because the selected retirement age plus a day would always be less discriminatory than the chosen retirement age and thus the chosen retirement age would not be the least discriminatory means of achieving the aims.
Of course the saga could yet have further instalments depending on whether any further appeals ensue. But for the time being at least, where does this leave employers?
For those that have held their nerve and stuck with a mandatory retirement age the judgment is clearly good news. The case will surely act as a deterrent to at least some would-be litigants and, for those that do try their luck, it is clear that objectively justifying these two legitimate aims is indeed possible.
There is a serious health warning however. Whilst trite to say it, the reality of course is that each case turns on its own facts. In this case for example, Mr Seldon was a partner in a relatively small law firm who agreed to a retirement age in circumstances where greater equality of bargaining power existed than is often the case. Moreover this all took place at a time when the state pension age was still 65, and there was a statutory default retirement age for employees (as opposed to partners) of 65.
Employers who wish to retain a mandatory retirement age will need to think carefully about whether the facts underlying their own defence are quite so strong. Considering the following should help:
- What concrete evidence do you have to support the potentially legitimate aim you would propose to rely upon? Mere assertion won't be enough, as CWJ's failure to get home on their collegiality argument demonstrated.
- Whatever aim you have identified, make sure you have thought about whether there is a less discriminatory way of achieving it.
- If you have consulted extensively about your chosen retirement age then so much the better – see for example the extensive work on that front done by the Universities of Oxford and Cambridge who currently have retirement ages of 68 and 67 respectively.
- A mandatory retirement age not lower than the state pension age is likely to meet with less employee resistance and be easier to justify. The state pension age is of course set to increase to 70 by 2040.
The other thing that strikes me about this decision is that, in many respects, whilst the lawyers have been arguing the world of work has moved on. A great many employers have already abandoned their mandatory retirement age and armageddon has not ensued. Speaking at an education conference last week we asked a room of 120 or so delegates whether any of them still operated a mandatory retirement age and scarcely a hand went up.
So whilst I shall continue to follow this saga with obvious interest (it's not quite Breaking Bad but this is law after all...), l suspect the debate is becoming less relevant as the years go by.