Supreme Court hears solicitor's age claim

Supreme Court justices Lords Hope, Hale, Brown, Mance, and Kerr will today hear arguments in the snowballing Seldon v Clarkson Wright & Jakes (CWJ) age discrimination case.

The Lawyer first revealed in March last year that the trial, which predates the Heyday retirement case (25 September 2009) would proceed to the Supreme Court with the Equalities and Human Rights Commission (EHRC) supporting former CWJ partner Seldon, while the Secretary of State for Business, Innovation and Skills has intervened in support of the firm.

Lawyer Seldon, whose firm CWJ made him retire when he reached 65, as was set out in the partnership deed, claimed that the firm could not justify the retirement and therefore was discriminating against him.

In July 2010, the Court of Appeal held that the Employment Appeal Tribunal (EAT) had been right to find that the firm could justify the retirement because it enabled associates to move up the ranks to partnership; it facilitated the planning of the partnership and gave the workforce long-term expectations on when vacancies would arise; and it limited the need for partners to be expelled by way of performance management, thus contributing to the congenial and supportive culture of the firm.

The ERHC instructed Cloisters Robin Allen QC to represent Seldon, while the firm is represented by Blackstone Chambers’ Thomas Croxford.

Blackstone’s Dinah Rose QC is intervening on behalf of the government.

The ruling will have implications for how all partners can be retired from partnerships.

“In this case the significance of any judicial decision will be restricted to partners-as employees were at the time subject in any event to a statutory default retirement age of 65,” explained Russell Jones & Walker employment partner Clive Howard.

Weightmans employment partner Paul McFarlane added: “With the removal of the default retirement age, it must be questioned whether having a congenial and supportive culture in a firm, which does not need to have performance management, is both necessary and appropriate?  

“Similarly, will it now be enough to put forward as a legitimate aim of enabling associates to move up the ranks? Even if this is considered to be a legitimate aim, will its continued use be considered proportionate?”

The case has been joined with Homer v Chief Constable of West Yorkshire Police in which the CoA ruled that an employer’s requirement for employees to have a law degree to proceed to the highest of three grades did not indirectly discriminate against him as a 61-year-old.

Homer worked as a legal adviser with the police national legal database, having had 30 years’ experience as a police officer. When he was 61, he applied for promotion to a higher pay grade. He was turned down, even though he was very experienced, on the ground that he did not meet its “essential” requirement that he hold a law degree or similar qualification.

An employment tribunal upheld Homer’s claim for indirect age discrimination, accepting that employees aged 60 to 65 did not have time to do a law degree before they retired. However, the EAT overturned this decision, with the CoA upholding the decision (see judgment).

The appellate court ruled that the disadvantage suffered by the claimant arose from not from age but from the fact that he was expected to retire at the age of 65.

Cloisters barrister Declan O’Dempsey was instructed by McCormicks partner Neil Goodrum for the appellant while Broadway House Chambers’ David Jones is appearing for the Chief Constable of West Yorkshire Police.