It’s time

At what age can a firm justify retiring a partner? Age discrimination legislation is an area woefully short of legal clarification. The snowballing case that is Seldon v Clarkson Wright & Jakes (CWJ) started off with a partner suing his firm on grounds of age discrimination. It has escalated into a battle between government and the Equality and Human Rights Commission (EHRC).

When Clarkson Wright & Jakes partner Leslie Seldon hit the age of 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 could not justify the retirement and therefore acted discriminately.

Under the European-wide Equal Treatment 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 employees could retire employees if the move could be justified in line with public policy.

But what constitutes public policy? What about those people who aren’t employees but part of a wider partnership – how can the age discrimination laws be enacted here? Has the government got its legislation wrong?

At the original Tribunal, CWJ, represented by Blackstone Chambers’ Thomas Croxford, put forward six key points as grounds for reasonable justification of Seldon’s retirement. Finding in the firm’s favour, the tribunal upheld three points of justification, suggesting that in legal terms at least they would be part of public policy.

This included the argument that the policy would allow younger associates to move through the ranks. It upheld the notion that older partners do not perform on the same level as their younger counterparts.

When the case reached the Employment Appeal Tribunal (EAT) the EHRC got involved as an intervener. It directly instructed Declan O’Dempsey of Cloisters Chambers to support Seldon’s legal team. The long term aim was to get the case into the Court of Appeal to force the government to look again at how it enacted the European age discrimination laws.

The EAT dismissed all the grounds of CWJ’s case save one, namely that 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.

Before the Tribunal could be reopened the ECHR decided to lend its full weight to Seldon and fund his case in the Court of Appeal to challenge directly how government had enacted the European directive. The appellants instructed Robin Allen QC of Cloisters to represent them. Allen is also due to appear before the High Court next week in another law defining discrimination case- the Heyday litigation.

In March the European Court of Justice ruled that the default retirement age for employees (note that is employees and notpartners) was not directly in contravention of the EU Directive.

This was after Allen fought a case on behalf of Age Concern challenging the government on how it interpreted the Directive. In response the Treasury Solicitors instructed Blackstone Chambers’ Dinah Rose QC to present its case. The ECJ referred the matter back to the High Court for further clarification and the case will begin next Wednesday.

Meanwhile, the Department of Business Innovation and Skills (DBIS) has jumped on the Seldon bandwagon and instructed Rose to act as an intervener and defend its stance on age discrimination for partnerships.

It is, in fact, a rerun of the Heyday line up – but this time on partnerships.

At the Court of Appeal, Allen will argue that the justifications put forward by CWJ’s counsel go against the spirit of the public policy element of the law. “We’ll argue that it is not up to CWJ to be able to define what should be deemed as public policy,” said a lawyer closely involved with the case.

With both cases scheduled for next week it is likely one will directly impact on the other, although nothing is ever certain in law. These judgments will define how age discrimination cases will be handled by the courts. They will also determine what the right age to retire both employees and partners.