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Does the Supreme Court uphold forced retirement?

27 April 2012

Supreme Court dismiss appeal in Seldon v Clarkson Wright and Jakes

The Supreme Court today (25 April) dismissed the appeal by retired law firm partner, Mr Seldon, that Clarkson Wright and Jakes (CWJ) had directly discriminated against him on grounds of his age by forcing him to retire at age 65.

The Supreme Court has sent the case back to the Employment Tribunal for it to decide whether 65, the retirement age chosen, was the correct age.

The case raised issues about the scope for justifying direct discrimination on grounds of age and in particular the retention of a mandatory retirement age of 65.

The decision clarifies the legitimate aims employers might rely on to justify direct age discrimination, but reminds them that the justification for direct and indirect discrimination are not the same and that direct discrimination must be justified with reference to objectives of a public interest nature. 

The measures taken in pursuance of that aim in this case ie staff retention, workforce planning and the wish to avoid expelling partners by way of performance management were considered to be legitimate aims but to rely on the provision it must still be proportionate.

The case was considered jointly with Homer v Chief Constable of West Yorkshire, which concerned justification of indirect age discrimination.


Amongst the press statements about the outcome, or what is in reality simply another stage of this case, was a statement from the managing partner of CJW who said the case had been "time consuming and expensive". 

What he could also have said is that he is no wiser as to whether his firm will, or will not succeed before the original Employment Tribunal as to whether 65 was the right age chosen for retirement. Why not 66 or 70 chosen?

The case is of interest to legal practitioners as it does summarise the ECJ decisions and clarifies some issues but we question whether it is of wider interest. Attitudes to retirement have moved on since the case started in 2006. 

The government has abolished the default retirement age and as a result many employers have decided to abandon the retention of contractual retirement ages and place greater reliance on performance management tools to address issues of poor performance.

The case is helpful in that it confirms that the courts might uphold the retention of a retirement age but the problem of what is the right age and whether it can be justified remain.  

In our view most employers will not wish to run the risk of claims by those forced out of work at 65 and will prefer to manage the process when it is clear that older employees can no longer carry out the work they are required to perform.

The need for the retention of a set retirement age to allow workplace and succession planning seems hollow against the difficulties employers face in managing dynamic and rapidly changing work situations. 

Possibly the recognition of a workplace that values employees for what they can deliver to the business, regardless of their age, is more likely to encourage employees to stay and build stable careers with the business. 

Further it may permit sensible discussions about career aspirations whether or not under the off the record wrap of "protected conversations" proposed by the government.

So what guidance can be drawn from the case?

  • The retention of set retirement ages remain in principle possible but it may only be in cases where there is a sound reason for its retention can they be relied on. So employers who decided to abandon set retirement ages were not wrong to do so given the difficulties of justifying the retention of a set age.
  • Employers who have a set retirement age must have good legitimate public interest reasons for the retention of a retirement age and they will have to be able show that these aims fit with their particular business objectives. It is not a case of one size fits all and it may be advisable to re visit the aims and objectives of the retirement policy in the light of the decision and document decisions taken.
  • Justifying a retirement age is not on it own enough. Imposing a particular compulsory retirement age will be difficult to justify without evidence to support the particular age in order to meet the proportionality test particularly in light of the repeal of the default retirement age.
  • Partnerships and LLPs may take comfort that they have a better chance of upholding a set retirement age as the retirement age is agreed between partners and members and so may be considered proportionate as distinct to arbitrary compulsory retirement ages which are invariably unilaterally imposed on employees.

This article was written by Emma Bartlett.