Legal brief: Too young to retire?

It neglected to mention the Heyday ruling handed down by Mr Justice Blake last September in which he stated that legislation governing the DRA must be reformed (30 September).

Last week, the Court of Appeal was convened to hear the snowballing case that is Seldon v Clarkson Wright & Jakes,  a trial that looks specifically at whether it is legal to force a partner to retire when he or she reaches the age of 65.

When Clarkson Wright & Jakes (CWJ) partner Leslie Seldon turned 65 his firm decided to enact its partnership agreement and force him to retire.

Dissatisfied, Seldon instructed Jo Davis, head of employment at BP Collins, to sue the firm because, he argued, the firm couldn’t justify the retirement and therefore acted discriminately.

In round one of the dispute, the Employment Tribunal found in favour of CWJ and ruled the firm could justify its action and therefore be legal.One argument it accepted was that the policy would allow younger associates to move through the ranks. It also upheld the notion that older partners don’t perform on the same level as their younger counterparts.

In round two, at the Employment Appeal Tribunal (EAT), the Equalities and Human Rights Commission (EHRC) got involved as an intervener, instructing Cloisters Chambers barrister Declan O’Dempsey to support Seldon’s legal team.

Again CWJ, represented by Blackstone Chambers Thomas Croxford, won all points, save  one, namely the assumption that performance dropped off at 65 was not supported by any evidence and involved stereotyping. The case was referred back to the same tribunal to consider whether the need to achieve the other legitimate aims was sufficient to justify the rule.

That might have been the end of it, but the EHRC decided to back Seldon’s case in the Court of Appeal and instructed Cloisters’ star employment silk Robin Allen QC.

When the EHRC got involved the Government decided it should defend it and instructed heavyweight Dinah Rose QC of Blackstone Chambers to represent it as an intervener.

Allen also acted for Age Concern in last year’s Heyday case in which he challenged the Government’s interpretation of the Europe-wide Equal Treatment Framework Directive. In that case he also came up against Rose, who had been instructed by the Government.

Under that Framework Directive, age discrimination stands alone - it is the only area where some justification arguments can be accepted by the court.  Member states were left to enact the law. In the UK the Act said employers could retire employees if the move could be justified in line with public policy.

In Heyday, Allen argued that just because the discrimination could be justified it didn’t make it legal. It was on these grounds that Allen appealed the Seldon case and the appeal court adjourned the Seldon hearing pending the outcome of the Heyday case. The Government won the Heyday case. 

But last week Allen and Rose were back in court for round two and this time Allen argued that if discrimination can be justified that justification should not be based on private business needs but on social policy.

Lord Justices Laws, Waller and Hughes are expected to give their judgment before the summer break. If it goes against CWJ a lot of firms could be spending their summer rewriting partnership deeds and you all could be working longer.