26 April 2012
Seldon ruling by the Supreme Court
A landmark judgment by the Supreme Court in the case of Seldon v Clarkson Wright and Jakes (CWJ) on Wednesday (25 April), prompted a raft of BBC TV and radio interviews for Jo Davis, head of employment law at B P Collins LLP.
Leslie Seldon, a partner at a firm of solicitors in Kent, who was first represented by Jo at an Employment Tribunal, had appealed to the Supreme Court to be allowed to continue working after the age of 65, and his case was taken on by the Equality and Human Rights Commission and Age UK.
CWJ had sought to justify Mr Seldon’s retirement on the basis that younger employees needed the opportunity to move up through the ranks, that it enabled the law firm to forward plan more easily, and prevented the firm from having to remove older partners using more confrontational mechanisms like performance reviews.
Mr Seldon challenged this justification but the Supreme Court dismissed his appeal, outlining for the first time the powers that employers have to force workers to retire. These include ensuring they have a legitimate aim – such as making way for younger employees – and the process is done fairly and correctly.
Speaking live on BBC London, Jo welcomed the fact that the case had brought some clarity for employers in relation to the policies they need to have in place in order to justify plans to compulsorily retire someone.
“It does give greater clarity for employers as to whether or not they are able to retire someone at 65, 66 or 67 etc., but the question of the exact age is something that will have to be looked at by them quite carefully,” she said.
“It is quite a minefield and companies aren’t really going to know until they are challenged whether or not they are going to succeed in showing someone’s retirement was justified.
“The Supreme Court has made it clear they will scrutinise businesses on a case by case basis. If a company’s plans to retire someone can be justified as a legitimate aim, then the question is, could it be achieved in a less discriminatory way? For example, not necessarily at 65?
“It is a balancing process between the needs of older workers and younger ones who want to come up through the ranks. Although this ruling has brought some clarity, it is not the end of the story and the Employment Tribunal will be asked to consider if making Mr Seldon retire at 65 was an appropriate and necessary means of achieving that legitimate aim.”
As a partner rather than an employee, Mr Seldon had not been subject to the now defunct default retirement age, abolished last October, and he had claimed the decision to make him retire was age discrimination.
Whilst remitting the specific case back to the Employment Tribunal for further consideration, Justice Hale concluded more generally that in order to justify a policy it is not sufficient for an employer to show that it has an aim which is capable of being a public interest aim; they need to show in addition that it is actually a legitimate aim in the particular circumstances of the employment.
Jo appeared on both the lunchtime and early evening news reports for BBC London and was interviewed on BBC Radio London.