Seldon v Clarkson Wright & Jakes (A Partnership) [2012]
Published on: 27/04/2012
Issues Covered:
Discrimination
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Background
The Court of appeal issued judgement on this case in July 2010. Readers will remember it was a case of a partner solicitor forced to retire in accordance with the terms of the partnership deed at the end of the year following his 65th birthday and, following the Supreme Court's judgement, should be useful should employers wish to retain a contractual retirement age and justify an employee's retirement, rather than force the dismissal on grounds of capability route.In relation to age discrimination, article 6(1) of the framework directive allows member states to provide that “differences of treatment on grounds of age shall not constitute discrimination if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary”.The Supreme Court has found the retirement was justified (i.e. the aims of the firm complied with these social policies) but the case has been referred to the tribunal to decide proportionality. Lady Hale summed up the position in relation to justification and madereference to ECJ decisions that now back up the original tribunal's decision:"In common with both the EAT and the Court of Appeal, I would pay tribute to the careful judgment of the ET. Their conclusions are particularly impressive given that they were deciding the case in November 2007, before any of the European jurisprudence discussed earlier had emerged. They did approach the justification of direct discrimination in the same way as they would have approached the justification of indirect discrimination, whereas we now know that there is a difference between the two. However, they identified three aims for the compulsory retirement age, which the Court of Appeal summed up as “dead men‟s shoes” and “collegiality”. Mr Seldon, with the support of Age UK, has argued that these were individual aims of the business rather than the sort of social policy aims contemplated by the Directive. I do not think that that is fair. The first two identified aims were staff retention and workforce planning, both of which are directly related to the legitimate social policy aim of sharing out professional employment opportunities fairly between the generations (and were recognised as legitimate in Fuchs). The third was limiting the need to expel partners by way 30of performance management, which is directly related to the “dignity” aims accepted in Rosenbladt and Fuchs. It is also clear that the aims can be related to the particular circumstances of the type of business concerned (such as university teaching, as in Georgiev). I would therefore accept that the identified aims were legitimate."The case was remitted to the Employment Tribunal to consider whether the choice of a mandatory age of 65 was a proportionate means of achieving the legitimate aims of the partnership.http://bit.ly/IbhmEa
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Disclaimer
The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.
This article is correct at 27/04/2012
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