The case of Leslie Seldon, the solicitor who challenged his firm's decision to retire him at age 65, is being heard this week at the Court of Appeal. The case is important because it will hopefully give some clarification on when age discrimination can be justified. Mr Seldon was a partner in the firm and so the default retirement age did not apply (the default retirement age allows employers to set a retirement age of 65 or above without having to justify it - but it only applies to "employees", not partners).
The employment tribunal had found that the firm's mandatory retirement age could be justified, and the Employment Appeals Tribunal (EAT) confirmed that the aims put forward by the firm to justify the decision could be legitimate. However, since the decision of the EAT, we have had the decision of the European Court of Justice (ECJ) in the case brought by Age Concern (the "Heyday" case), which gave guidance on how courts and tribunals should look at the question of justification. The ECJ guidance will be particularly relevant in the Seldon case.
The ECJ in the Age Concern case said that direct age discrimination could be justified if it was in pursuit of a legitimate social policy aim in the public interest - not an aim that was particular to an individual employer's situation.
The EAT in the Seldon case held that the aims put forward by the firm to justify the retirement age of 65 could be legitimate. The three "legitimate aims" were:
- enabling the long-term planning of the partnership,
- giving associate solicitors in the firm the opportunity to become partners, and
- creating a congenial atmosphere (avoiding the need for performance management).
All of these aims could clearly be described as being "purely individual reasons particular to the employer's situation" rather than the social policy aims the ECJ stated must be established in order for discrimination to be justified. This gives the Court of Appeal the opportunity to really get to grips with what the ECJ guidance means for UK employers looking to justify age discrimination.
The detail of what the Court of Appeal will be considering is helpfully set out by Jo Davis, partner and head of employment at BP Collins (the firm representing Mr Seldon) on her firm's website.
You can read more about the case (Seldon v Clarkson Wright & Jakes) on the Times website.
The Age Concern case challenging the default retirement age will be heard at the High Court later this week. The Personnel Today website has extensive coverage of the case and the issues involved.
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