Seldon v Clarkson Wright and Jakes: case report

08 July 2008



Partnership ruling due on age discrimination laws

An Employment Tribunal appeal due to be heard next week is expected to have a major impact on whether or not partners in firms can be forced to retire at a certain age.

B P Collins is representing Leslie Seldon, a former senior partner at Kent-based law firm Clarkson Wright and Jakes (CWJ), who is appealing against an earlier ruling that he was not discriminated against when he was forced to retire at the age of 65.

Mr Seldon's appeal, reserved for hearing by the Honourable Mr Justice Elias, the President of the Employment Appeal Tribunal on July 14 and 15, comes in the same month as a challenge to the UK government's legal retirement age of 65 in the European Court of Justice (ECJ).

Being undertaken by Heyday*, a new membership organisation backed by Age Concern and launched to support people approaching or in early retirement, the challenge claims the UK government was in breach of the EU's Equal Treatment Directive by imposing a mandatory retirement age for employees.

The two cases highlight the difference in age discrimination law as, when it was introduced in October 2006, the legislation ruled that 65 was the default retirement age for employees but specifically excluded partners, causing uncertainty for both firms and individuals within partnerships and LLPs.

Partner and head of the employment law team at B P Collins, Jo Davis, said: "If the ECJ challenge is successful and Mr Seldon's appeal is not, we could find ourselves in the reverse situation to that legislated for: employees able to choose to work beyond 65, and partners who are forced to retire. Until we have clarity, many partners may struggle to work beyond 65, even if they wish to.

"We expect the Employment Appeal Tribunal to provide some clarity to the legislation and set an important precedent in relation to the type of evidence required by a partnership when justifying its retirement age."

B P Collins represented Mr Seldon at the original Employment Tribunal held in January, which found Clarkson Wright and Jakes had been justified in forcing his retirement in order to achieve a number of aims for the business.

These included giving younger associates an opportunity of partnership after a reasonable period, creating realistic expectations of future vacancies and the need to maintain a congenial working atmosphere and avoid confronting partners about under-performance near to their retirement.

The tribunal agreed that it mattered neither whether those aims had been fulfilled nor if they had been in the mind of the partnership at the time.

Since the original ruling, the Equality and Human Rights Commission (EHRC) has also taken up the case and is challenging what it calls the discriminatory assumption relied upon by the Employment Tribunal that a person becomes more likely to underperform as they get older.

The EHRC has been granted permission to make representations in respect of the human rights ramifications of the claim and this challenge is expected to provide further additional clarity as to the correct implementation of age discrimination legislation in national courts.

ENDS

Notes to editors:

In the tribunal case brought by Mr Seldon, Clarkson Wright and Jakes accepted that compulsory retirement was an act of less favourable treatment but denied discrimination on the grounds that it was justified. The Tribunal found that the firm had victimised Mr Seldon by withdrawing a promised 'goodwill' payment when he announced his intention to challenge the retirement age, but agreed that the retirement clause could be justified by a number of the partnership's aims for their business, namely:

1. the firm's wish to ensure that its associates are given an opportunity of partnership after a reasonable period;

2. to facilitate the planning of the workforce and partnership by creating realistic expectations as to vacancies; and

3. their desire to limit the expulsion of partners by performance management in order to maintain a congenial atmosphere within the partnership.

Clarkson Wright and Jakes did not argue that any of these aims had been fulfilled by retiring Mr Seldon.

* Known as the Heyday challenge, this case has been referred to the European Court of Justice to determine whether or not the Government's decision to implement a compulsory retirement age for employees is lawful. Heyday is arguing that the Government has not objectively justified the compulsory retirement age and have failed to properly reflect the tests for justification as dictated by Europe.

For more information and comment:

Sarah Walton
Write Angle PR
01865 891 837 or
sarah@write-angle-pr.co.uk

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