Partnership retirement rage

Former Clarkson Wright & Jakes partner Leslie Seldon has pursued a seven-year legal battle against his former firm, which included a trip to the Supreme Court. Yesterday, the Employment Appeal Tribunal signalled the end of the road for the case. Katy Dowell reports

It has been seven years since former partner Leslie Seldon began his legal battle with his former firm, Clarkson Wright & Jakes, over his mandatory retirement in December 2006.

This is a case that has travelled from the Employment Tribunal through the Court of Appeal to the Supreme Court back to the tribunal and, yesterday, had yet another outing at the Employment Appeal Tribunal (EAT). Yet his mission to have his retirement ruled unjustified has been thwarted at almost every turn.

In order to understand the decision delivered by the EAT yesterday (13 May) it is necessary to revisit this legal maze of the last seven years.

When CWJ forced Seldon to retire at the age of 65 in accordance with its partnership agreement the lawyer turned to BP Collins employment head Jo Davis to launch a case against the firm. He contended that the firm could not justify the retirement and therefore discriminated against Seldon.

In response CWJ, represented by Blackstone Chambers’ Thomas Croxford, put forward six key points as grounds for reasonable justification for the retirement. Finding in the firm’s favour, the tribunal upheld three points of justification: retention and recruitment, workforce planning and collegiality.

The following year Seldon took the case to the EAT in a bid to overturn the ruling. The case went against him on all points but one – the assumption that performance dropped off at 65. 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.

The case attracted interventions when it went into round three at the CoA. The Equality & Human Rights Commission instructed Cloisters’ Robin Allen QC for Seldon. Croxford continued to act for the firm, but he was supported by his setmate Dinah Rose QC, who was instructed for the Secretary of State for Business, Innovation and Skills as an intervener. The appeal was dismissed (28 July 2010).

The fight went onto the Supreme Court, attracting further intervention from Age UK with Irwin Mitchell associate Liesel Whitfield instructing Cloisters’ Declan O’Dempsey.

The Supreme Court ruled that Seldon’s firm did have some valid reasons for having a mandatory retirement age for partners. The dispute was referred back to the ET, which was asked to consider whether forcing partners to leave after their 65th birthday was appropriate and necessary (see story).

The tribunal held that, whilst the firm might have selected other ages within a narrow range (64 or 66) as the mandatory retirement age to achieve its two remaining aims, the selection of 65 was objectively justified. 

And so to the final bout, when Seldon again attempted to overturn the ruling principally on the basis that if the firm’s aims could also have been achieved by a retirement age of 66 then the firm could not justify maintaining a lower retirement age for partners. He instructed 36 Bedford Row’s Richard O’Dair directly. Croxford continued to act for the firm.

It is hard to see how Seldon can take the case back to the CoA after the EAT held that the tribunal had given itself an impeccable self-direction in law and was entitled to reach its conclusion on the evidence before it.

The EAT noted that if Seldon’s arguments were correct, no retirement age could ever be justified, because the selected age plus a day would always be less discriminatory than the chosen date, and thus the chosen retirement age would not be the least discriminatory means of achieving the aims.

It held that the proper analysis was to consider whether the chosen retirement age was reasonably necessary to achieve the aims, given the realities of setting a bright-line.

Commentators suggest that such challenges will fail to arise, particularly as the default retirement age has now been repealed. That is one indication that the wind of Government policy is currently blowing in the direction of encouraging people to continue working.

For partnerships, however, firm management will want to keep an eye on partner progression – retiring at the top of the tree to allow the next generation to move through the ranks. 

As for Seldon, a seven-year legal battle will no doubt take its toll. Whether he has changed the law is questionable, his legal battles will take on a legacy of its own for helping to clarify the law around partnership retirements.