After a succession of appeals in Seldon v Clarkson Wright & Jakes, the Supreme Court (SC) sent the case back to a tribunal who had to decide whether a firm of solicitors could defeat a direct age discrimination claim by showing that enforcing a partner to retire at 65 was a proportionate means of meeting its legitimate aims. The SC agreed with the tribunal, EAT and Court of Appeal that the Firm’s aims were legitimate, i.e. career progression, workforce planning and limiting the need to expel partners by way of performance management, contributing to a congenial and supportive culture, but returned the case to an ET to re-examine whether the retirement age of 65 was a proportionate means of achieving those aims.

The ET found that the retirement age of 65 was a proportionate means of achieving the firm’s aims for a number of reasons. The retirement age had been retained in the most recent partnership agreement. Seldon himself had thought it was a ‘reasonable target’. There had been no disagreement expressed by the partners in a situation where the partners were in an equal bargaining position. The evidence demonstrated that the age chosen did achieve the aims of the partnership and there was nothing to suggest that any other age would have been more appropriate and less discriminatory. Finally, in assessing the needs of the Firm, its partners and associates, the Firm’s needs were paramount, i.e. encouraging partners to stay, but not to an age where associates would lose interest and leave because of the lack of progression. Therefore, Seldon’s claim failed.

Comment: Each case rests on its own set of facts and justification will always depend on the employer’s circumstances. So, employers cannot view this judgment as a template for justifying direct age discrimination. Indeed, as the ET highlighted, this case was decided based on social policy and demographics in 2006 and things have changed in the last seven years, so the case may well have been decided differently today.