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Can an employer forcibly retire an employee when they attain the age of 65?

This was the issue the Supreme Court confronted in the case of Seldon v Clarkson Wright & Jakes. Leslie Seldon, a partner in Kent-based law firm Clarkson, Wright & Jakes, was forcibly retired by the partnership shortly after his 65th birthday. This was despite the fact that Mr Seldon had made it clear to the firm that he wished to continue to work for them.
It was argued that the firm’s actions amounted to direct age discrimination under the Employment Equality (Age) Regulations 2006 (now replaced by the Equality Act 2010) in that the only reason for Mr Seldon’s dismissal was because of his age. Clarkson, Wright & Jakes in turn argued that, as part of its trust deed was aimed at ensuring succession within the partnership, Mr Seldon’s dismissal was a legitimate aim and in the “public interest” because it sought to allow employment to be shared between generations.
The Supreme Court has today ruled against Mr Seldon and held that in limited circumstances an employer can use the “public interest” argument to justify forcibly retiring an employee once they reach the age of 65. The Supreme Court accepted Clarkson, Wright & Jakes’ argument that there were legitimate aims for its retirement policy. These aims included:

ensuring younger workers had the opportunity of becoming a partner after a reasonable period;
having a realistic long-term expectation as to when vacancies will arise so as to facilitate planning; and
limiting the expulsion of partners for poor performance.

In this case the forced retirement of Mr Seldon once he had attained the age of 65 was in the “public interest” in that it secured succession within the firm and the potential to help curb youth unemployment. Additionally, forced retirement could also have the effect of preserving the dignity of an older worker who would otherwise face the possibility of being dismissed on the grounds of a diminishment in their capability.
This decision, however, should not be seen as granting employers free rein to dismiss an employee on their 65th birthday. Indeed, the Supreme Court only ruled in Clarkson, Wright & Jakes’ favour because the partnership was able to justify the dismissal on the basis that their retirement policy served the “public interest”.
An employer must be able to demonstrate by reference to their own retirement rules that the dismissal of a person aged 65 or over because of their age was in the “public interest” and a proportionate means of achieving a legitimate aim. Each case will be decided on its own merits and all employers should consequently now give very careful consideration to what mandatory retirement rules can be justified in their particular business.
The case has been remitted back to the Employment Tribunal to rule on whether 65 is an appropriate age for an employee to be compulsorily retired by their employer and we will keep you updated on the Tribunal’s decision.
For further information relating to Employment Law please contact Robert Holland.

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