UK: Age discrimination - partnership mandatory retirement age of 65 lawful

Readers will be aware of the Supreme Court ruling in Seldon v Clarkson Wright & Jakes that a mandatory retirement age of 65 in a law firm partnership was potentially justifiable to achieve the legitimate aims of staff recruitment and retention and workforce planning (see here). The case was remitted to the tribunal to decide whether it was in fact justified in the particular case, and the tribunal has now confirmed that it was.

The most relevant factors were that all the firm's partners were in an equal bargaining position and had consented to the rule, and that at the time salaried partners and associates were subject to the statutory default retirement age of 65 (since abolished). The tribunal also took into account the fact that the original tribunal had considered the state pension age (65 for men at the time) to be a relevant but not significant factor, that the ECJ has upheld retirement ages of 65, and that mandatory retirement at some age does achieve the legitimate aim of avoiding the need to expel partners by performance management (although this by itself would not justify the specific age of 65).

The tribunal noted that the position might be different if Mr Seldon had been retired compulsorily after the abolition of the statutory default retirement age in 2011 and after the planned changes in the state pension age.

The ruling does not represent a green light for employers who have chosen to retain compulsory retirement ages, given the importance of the size and culture of the firm in this case, the lack of equality of bargaining power in the employment relationship, and the fact that the abolition of the default retirement age removes a rationale for choosing that age. It is unclear whether the availability of pension could provide sufficient rationale for choosing a cut off on its own, or whether it will be necessary to compile statistical evidence on the impact of specific retirement ages on recruitment/retention or succession-planning. It seems that if evidence is required, it will need to be specific to the industry or employer - the tribunal here criticised evidence on deterioration of performance with age on the grounds that it related only to employees and workers generally and not professionals such as law firm partners, and so was not sufficiently focused or relevant.