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Seldon v Clarkson Wright and Jakes (Supreme Court)

25 April 2012

Subjects : News; Justification; Retirement; Direct Discrimination

Mr Seldon, an equity partner in a small Kent law firm, was compulsorily retired at the age of 65 in accordance with the terms of the partnership deed.  The firm accepted that this was direct age discrimination but argued that it could be justified as a proportionate means of achieving various legitimate aims.  The aims accepted as legitimate by the Employment Tribunal were:

  • ensuring associates were given the opportunity of partnership after a reasonable period;
  • facilitating planning of the partnership and workforce across individual departments by having a realistic long-term expectation as to when vacancies would arise; and
  • limiting the need to expel partners by way of performance management, thus contributing to the congenial and supportive culture in the firm.

The Employment Appeal Tribunal (click here for a summary) and the Court of Appeal (click here for a summary) also accepted that all of these aims were legitimate.  However, it still had to be established that a retirement age of 65, as opposed to any other age, was proportionate for all of these aims.   

Mr Seldon appealed with the support of the EHRC. The key question for the Supreme Court was when compulsory retirement of employees at a particular age can be justified by an employer.  Requiring an employee to retire at a particular age will inevitably be direct age discrimination.  Unlike other types of discrimination, direct age discrimination can be justified.  However, it has been unclear what aims an employer can use to justify retirement, and whether the test is the same as or narrower than the test for justification of indirect discrimination.

Decision

The Supreme Court dismissed Mr Seldon’s appeal and remitted his case back to the Employment Tribunal.

Although the Supreme Court dismissed the appeal, it did set out a number of significant principles about justification of direct age discrimination, particularly for private businesses. 

The Supreme Court held that the type of legitimate aims that can be used to justify direct age discrimination are different from the aims that can be used to justify indirect discrimination.  They must be based on “social policy objectives”, such as those related to employment policy, the labour market or vocational training.  This means the aims must be of a “public interest nature”, rather than purely individual reasons particular to one employer’s situation. This aspect of the decision received attention from the Telegraph.

The Supreme Court noted that two different types of legitimate aim have been identified by the ECJ in direct age discrimination cases.  The first is “intergenerational fairness”, which can mean various things, including facilitating access to employment for young people, sharing work fairly between the generations, and enabling older people to remain in the workforce.  The second is “dignity”, which is based around avoiding the need to involve older workers in incapacity or underperformance processes.  The Supreme Court noted that this second objective was more controversial and based on assumptions which “look suspiciously like stereotyping”, but the ECJ had held that avoiding “unseemly debates about capacity” could be a legitimate aim.

The Supreme Court held that ECJ caselaw said that it is not necessary, when seeking to justify discrimination, for the legitimate aim to have been articulated by the employer at the time, or even realised.  The aim must be genuine, but could be a rationalisation after the event.

Once an aim has been identified, it must be shown to be legitimate in the particular circumstances of the employment concerned.  For example, an employer cannot rely on an aim based on facilitating recruitment of younger workers if, in fact, there is no problem in recruiting younger workers.  In addition, seeking to avoid performance management for one section of the workforce may not be a legitimate aim if the employer already has sophisticated performance management measures in place.

The means of achieving this aim must be appropriate and necessary – i.e. proportionate.  This involves looking at whether, in the context of this employer, there are less discriminatory ways of achieving the same objective.  In retirement cases, the key issue will be the age chosen for retirement, and whether this is proportionate.

The Supreme Court also confirmed that it is not necessary to justify application of the retirement age to each individual – it is fine for employers to have a general rule about retirement.

Implications

Arguably, this decision makes mandatory retirement rules more difficult to justify.

The first hurdle is the need for an employer to show that its aims are of a “public interest nature”, rather than just relevant to their own business.  This is less onerous that it might seem at first glance. Many of the aims which an employer may have for its own business may also fit with the types of “social policy” aims that have been identified by the Court, such as fair sharing or work and opportunities between different generations, and avoiding undignified performance management of older workers. 

What is not allowed are aims purely on the employer’s own situation, such as reducing costs or improving competitiveness.  In setting a retirement age, it would be advisable for employers to record the basis for doing so, and ensure that this also relates to one or more of the approved aims of inter-generational fairness and dignity.

The next hurdle is showing that the aims are legitimate in the circumstances of the employer’s own business. This may be more difficult. For example, an employer cannot simply assume that a fixed retirement age will assist with inter-generational fairness issues such as recruitment or promotion opportunities for younger workers.  Instead, it must show that there is actual evidence to support this approach. 

It may be even more difficult for employers to rely on the other potentially legitimate aim of “dignity”.  Although the Court accepted that this could be a valid aim, they did express some disapproval of the concept that assumptions about capabilities at a certain age could be used to set a dismissal date for all workers.  Lady Hale commented that it may not be legitimate for a particular business to avoid proper performance management for older workers if it already has “sophisticated” performance management measures in place.  This suggests that an employer with good performance management practices may be unable to rely on “dignity” as a reason for retiring rather than performance managing older workers – while an employer with bad performance management practices may succeed in using this aim.  This seems an odd conclusion if the aim is to avoid subjecting older workers to the indignity of performance management, which surely is more likely in a business with proper performance management processes.

The final hurdle is showing that the particular retirement age selected is proportionate in the circumstances.  Again, this may be tricky for an employer to establish.  The Employment Tribunal still has to decide whether the age of 65 used in this case was proportionate (as opposed to another age such as 67 or 70).  Employers will need to show why their chosen age is appropriate and necessary, as opposed to other ages. 

Summary

The decision in Seldon indicates that justification of compulsory retirement will be difficult for employers to establish, and it gives no answer as to what retirement age might be appropriate.  Employers who do currently retain a retirement age would be well advised to consider this carefully in light of the Court’s decision.  Those that do not should not rush to set a retirement age now, but instead consider doing so in the future if changing circumstances make it a business necessity.

A copy of the Supreme Court’s judgment can be found here

A summary of the Court of Appeal judgment can be found here.

A summary of the Employment Appeal Tribunal judgment can be found here.

A summary of the Employment Tribunal judgment can be found here.

Seldon (Appellant) v Clarkson Wright and Jakes (A Partnership) [2012] UKSC 16