Mr Seldon was a partner at Clarkson, Wright and Jakes and it was the terms of the firm's partnership agreement that required partners to retire on their 65th birthday. Unlike other forms of discrimination it is possible to justify direct age discrimination. However, it was Mr Seldon's view that the firm were not able to justify the retirement age of 65 and had therefore discriminated against him.
Unfortunately for Mr Seldon the pursuit of this claim has been a bumpy ride right from the start with findings in the Employment Tribunal, the EAT, the Court of Appeal and finally the Supreme Court largely going against him. By 2012, when the case reached the Supreme Court, all the lower Courts and Tribunals had to one degree or another found that the law firm had justification for fixing a retirement age. The Supreme Court agreed there were valid reasons for having a mandatory retirement age for partners, but referred the dispute back to the Employment Tribunal to consider whether requiring partners to leave at age 65 was appropriate and necessary.
The Tribunal held that while the firm could have selected other ages within a narrow range (64 - 66) for achieving it's legitimate aims, the selection of the age of 65 was justified. Undeterred Mr Seldon appealed once again 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 an age lower than that could not be justified.
In a decision delivered last week the EAT upheld the Tribunal's decision confirming it had directed itself impeccably in terms of the law and was entitled to reach the conclusion on the evidence before it. The EAT noted that if Mr Seldon's argument was accepted then it would be impossible to justify a retirement age as that age plus one day would always be less discriminatory. While there is the possibility of an attempt to appeal to the Court of Appeal it is difficult to identify the basis for such a step given the EAT's conclusions.
So after all this time what has Mr Seldon achieved? Unfortunately very little for himself. Similarly the particular circumstances that led to a small firm in Kent being able to justify a retirement age of 65 for a partner should not be seen by employers as a green light to apply a compulsory retirement age. However, in a time where many are looking to work longer to make up for inadequate pension provision it does show that the Courts do still have an ear towards businesses and their need to consider recruitment, retention of staff and workforce planning