The judgment of the Employment Appeal Tribunal (“EAT”) in the second round appeal in the case of Seldon v Clarkson Wright & Jakes was handed down orally at the hearing on 13 May 2014. The typed copy of that judgment was made available on Monday this week. 

Langstaff J, the President of the EAT, opened his judgment with the remark “there is a long history, well known to employment lawyers, in relation to this case”. He noted that the litigation, having been pursued for eight years, had determined many broad issues of principle in the field of age discrimination. 

The question for the EAT related to the proportionality of the choice of retirement age. Age is a continuum. Do those selecting an age have to allow one year more, or indeed one day more, to satisfy the requirement that the least discriminatory means be adopted? The EAT’s answer was no. 

The facts, perhaps by now familiar to many employment lawyers and Legal-Island readers, were that Mr Seldon was retired as a partner in 2006 pursuant to a mandatory retirement clause in the firm’s partnership deed. He brought a claim of direct age discrimination against the firm, Clarkson Write and Jakes. The Employment Tribunal (“ET”) held that the retirement clause was objectively justified by the aims of retention and recruitment, workforce planning and collegiality. 

Mr Seldon appealed and the first EAT held that there was no evidence that the performance of partners might diminish by the age of 65 and that it could not be sure whether the ET would have reached the same conclusion that age 65 was justified on the basis of the non-collegiality aims of retention and planning. That first EAT remitted the case to the ET to determine whether the mandatory retirement clause could be justified by just the first two aims. 

Before the matter was remitted to the ET, Mr Seldon appealed that first EAT decision unsuccessfully to the Court of Appeal and Supreme Court. The case eventually returned to the ET in May 2013. The ET held there was a narrow range of ages (64-66) which might have been selected by the firm in order to achieve the aims. The ET held that age 65 was justified as falling within that range and also in light of the fact that 65 was the age consented to by partners in the deed and was the Default Retirement Age at the time. 

Langstaff J held the ET had adopted the correct approach. 

He adopted the submission for the firm that although a measure has to be “necessary” to achieve its aim the word “necessary” is qualified by the word “reasonably” (see Hardy and Hansons Plc v Lax [2005] ICR 1565). Langstaff J held “this qualification is essential if one is looking for a particular age”. He reasoned that if it were to be said that a day later than a given age would discriminate less such that it would be wrong not to adopt a day later as the day, then as a matter of principle it would seem that no date could be chosen lawfully. He considered that could not be right, because the case law of the higher courts was to the effect that it was appropriate to adopt an age, and an age is necessarily expressed as a point in time. 

Langstaff J considered that the issue in determining whether the age was proportionate was to determine where the balance lies between the discriminatory effect of choosing the age and its success in achieving the aim. That balance, it was held, “will not necessarily show that a particular point can be identified as any more or less appropriate than another particular point”. To recognise that was not to adopt a band of reasonable responses test, impermissible in this context, but was to pay regard to what was “reasonably necessary, given the realities of setting any particular bright line date”. 

Langstaff J also commented on to the evidence required to show a choice of age was appropriate. He accepted the submission for the firm that evidence may not always be as strong and compelling as it is in other areas, “in part... because of the inevitable spectrum of speculation around the effect of altering the age from one figure to another”. 

Mr Seldon has until 10 July to apply for leave to appeal from the EAT’s judgment to the Court of Appeal. We await the news as to whether there will be a Seldon Round 7. EAT Judgement:
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