Legitimate Aim

Seldon v Clarkson, Wright and Jakes and anor

Unlike other forms of direct discrimination, direct age discrimination can be justified by employers if they can show it is a proportionate means of achieving a legitimate aim.

In Seldon v Clarkson, Wright and Jakes and anor, the Court of Appeal said it was not unlawful to have a compulsory retirement age of 65 as long as it could be shown to be a proportionate means of achieving the firm’s aims.

Basic facts

Mr Seldon, a partner at Clarkson, Wright and Jakes until he reached the age of 65, was forced to retire at the end of the year following his 65th birthday, in accordance with the terms of the partnership agreement.

He brought a claim for unlawful direct age discrimination.

Tribunal and EAT decisions

Although the tribunal concluded that Mr Seldon had suffered less favourable treatment as a consequence of his age, it said the treatment was justified because the clause in the agreement had three legitimate aims:

• To ensure associates were promoted to partner after a reasonable period
• To be able to work out when vacancies would arise
• To create a congenial work culture by avoiding the need to expel partners by way of performance management

The Employment Appeal Tribunal (EAT) upheld the tribunal’s decision, except for the third aim which it said was based on a discriminatory stereotype that a partner’s performance would start to drop at age 65.

The EAT remitted the case to the tribunal to reconsider the issue of justification with regard to the first two aims, but Mr Seldon appealed to the Court of Appeal.

Among other things, he argued that the firm could not show that its aims included “social policy objectives” as required by the decision of the European Court of Justice (ECJ) in Age Concern v Secretary of State for Business, Enterprise and Regulatory Reform (see weekly LELR 115), as the firm’s were purely “self-interested aims”.

Court of Appeal decision

The Court rejected his arguments. It said that, although states have to justify their laws by reference to social policy aims, that was not the same as saying that private employers must also only have a “social or employment policy” aim. The legislation can, as the ECJ made clear, give "some discretionary powers or a degree of flexibility" to employers.

An employer or partnership could therefore have slightly mixed motives, as long as their actions were consistent with the government’s overall social policy aim. It would be counter-productive to “render that provision unlawful if the clause was a proportionate means of achieving the aim”.

The Court also rejected the argument that the aims had to have been consciously recognised when the clause was introduced into the deed. It said that “a discriminatory measure may be justified by a legitimate aim other than that which was specified at the time when the measure was introduced”.

As for the fact that the firm chose 65 as the cut-off age, the Court said that whatever age they chose was going to be discriminatory to that age. If it was proportionate to choose 65, the fact it would be less discriminatory to some to have chosen 66 did not mean the clause was unlawful.

Although there was no evidence to show whether it would have made any difference if the age chosen had been 68, 65 or 63, the fact the firm might have justified any of those ages did not mean that it could not choose one at all.