Spence and Partners are delighted to host a perspective of the age discrimination case of Seldon vs Clarkson Wright & Jakes by Burness solicitor Jennifer Skeoch. The case considers the issues of enforcing retirement on employees when they reach the age of 65.
On 25th April 2012, the Supreme Court handed down an eagerly awaited judgment in the case of Seldon -v- Clarkson Wright & Jakes. The headline news is that the Supreme Court dismissed Mr Seldon’s appeal and, in doing so, confirmed that a mandatory retirement age contained in the law firm’s partnership agreement could be objectively justified.
In the past, news of a significant judgment would take a good few days to filter down from the Courts to solicitors (regularly via legal commentators and the press), with solicitors then taking another few days (or in some cases weeks) to report the implications of the judgment to clients in briefing notes or updates. But times are definitely changing, and modern technology (particularly social media) seems to be at the heart of the change.
I knew the Seldon judgment was being handed down because of lawyers I follow on Twitter. Through the same means, I also knew that I could watch the judgment live online – something I did whilst live-tweeting the decision as it was read out by one of the Supreme Court Judges on our Employment Team’s Twitter account.
So in practical terms, what does the decision mean for employers (and partnerships) debating whether or not to maintain (or introduce) mandatory retirement ages? The straight answer to the question is, frustratingly, “it depends”.
It’s clear that “Step 1” in any justification exercise is to identify the aim or aims you are trying to achieve. The decision pulled together some helpful examples of the types of aims that could be relied upon, including the following:-
- Promoting access to employment for younger people;
- Efficient planning of the departure and recruitment of staff;
- Sharing out employment opportunities fairly between generations;
- Rewarding experience;
- Avoiding disputes about the employee’s fitness for work over a certain age; and
- Avoiding the need to dismiss employees on capability grounds which may be humiliating for the employee concerned.
“Step 2” is to be satisfied as an organisation that the aims you have identified count as objectives of a public interest nature and are consistent with UK social policy aims (such as inter-generational fairness and/or dignity).
Crucially, and as many commentators predicted, a “one size fits all” approach should not be taken when it comes to identifying legitimate aims. An aim that is recognised as being legitimate (both in terms of social policy and specific business sectors) might not apply to the particular employer or partnership in question. So well advised employers and partnerships should think very carefully before relying on mandatory retirement ages. They should also take care to implement them fairly to avoid claims of unfair dismissal claims in addition to complaints of age discrimination.
“Step 3” relates to the question of whether the chosen retirement age is a proportionate means of achieving the aims you’ve identified as an organisation. And this is where the Seldon decision fails to give a complete set of guidance to employers and partnerships. Whilst the Supreme Court confirmed that the aims identified by Clarkson Wright and Jakes were all legitimate (something which the original Employment Tribunal held to be the case when it was first heard), the question of whether 65 (as opposed to another age) is a proportionate means of achieving those aims will be dealt with by an Employment Tribunal. Notably, the Tribunal will be applying the law as it stood in 2006 when the default retirement age of 65 was still in place. I’ll be watching Twitter for details of when the Tribunal are likely to issue a decision on this point, and for other significant cases providing guidance on this last piece of the puzzle…