12 June 2013

Achieving a legitimate aim proportionately: The Seldon conclusion

Achieving a legitimate aim proportionately: The Seldon conclusion

Retirement of older workers, especially since the removal of the State Retirement Age, is fraught with difficulty. Mr Seldon, in a well-publicised and long-running case, was a partner in a firm of solicitors who claimed age discrimination when he was forced to retire at 65 under his partnership agreement.

The case has been up to the Supreme Court and back on the question of whether the mandatory retirement age could be justified as a legitimate aim achieved by proportionate means. If not, then it would be discriminatory and Mr Seldon would have been on course for a handsome payout

In a decision this month, the Tribunal agreed that in order to retain ambitious solicitors awaiting advancement, and to allow some dignity in the exit process for older employees, the mandatory retirement age of 65 was justified in this case

In reaching their judgement there was extensive examination of the retention and advancement of solicitors, and particular emphasis was placed on ambitious solicitors not being retained if there was no framework by which partners were required to retire. In addition, Mr Seldon and the other partners had all agreed on the mandatory retirement age of 65

 Conclusion

Unfortunately the outcome of this case does not give carte-blanche for employers wanting to maintain a mandatory retirement age. The Tribunal itself stated that the position might have been different now, given that the state retirement age has been abolished since these events took place in 2006. They pointed out that social norms have also changed in the intervening years, and retirement at 65 may no longer be automatically accepted by the public at large

So justification of a mandatory retirement age will continue to be very fact-sensitive. The starting point may be retention; collegiality (ie dignity for older workers) and possibly agreements reached amongst senior employee will also play a part. Even then, it may be that the retirement age has to reflect societal norms, with 65 being considered too young to retire.