Mixed news on the discrimination front last with what should be the last knockings of Seldon v Clarkson Wright & Jakes, the age claim brought by a partner compulsorily retired from a firm of solicitors.
The Employment Tribunal first ruled on this one in late 2007. In the interim it has been up to the Supreme Court (formerly the House of Lords) and back on appeal. Now the Employment Tribunal has had another go, this time looking specifically at one remaining question. It having been established that CWJ’s aims in terms of associate retention and workforce planning were legitimate, and that its means of achieving them (the maintenance of a compulsory retirement age for partners) were proportionate, the only outstanding issue was whether 65 was the right age for that purpose. Why that rather than 64 or 66? The Employment Tribunal concluded that so long as the age chosen was within the range where those aims would best be achieved, it could not be faulted. Therefore 65 got the nod and Mr Seldon was unsuccessful again.
However, the more interesting points from this do not make the headlines. First, do not try this at home – many of the facts relied upon by the Employment Tribunal in establishing the legitimacy of the aims and (in particular) the efficacy of the means are specific to solicitors and similar professions with very defined career ladders and promotion criteria, and may not be as easy to show in other environments.
Second, sad to report the passing of the “collegiality aim”, described by the Tribunal as “limiting the need to expel partners by way of performance management, thus contributing to the congenial and supportive culture within the firm”. Speaking as an older partner in a law firm, I thought that there was quite a lot to be said for this. Nonetheless, although upheld as legitimate by the Tribunal in 2007, that aim was quietly abandoned by CWJ later on. The firm was unable to show either that poor performance was the exclusive province of older partners, or that 65-ish was the age at which poor performance became statistically more likely. The only evidence available was a report by the National Institute of Economic and Social Research which suggested that for non-physical jobs, performance tends not to deteriorate materially until 70. That suggested that the maintenance of a compulsory retirement age of 65 might not be a proportionate means of achieving that (obviously extremely laudable) aim.
The Tribunal described the report’s relevant to the instant case as “sketchy”, but by that time, regrettably, the collegiality aim had already been pensioned off. Boo, hiss, etc.
All of which means what for other employers? Not too much in practical terms unless you are seeking to justify and retain a compulsory retirement age. If so, the aims of retaining staff, planning the workforce and not being too brutal with the older chaps are all still valid, but you had better have some really cracking evidence that pushing everyone out at a given age is genuinely the only way of getting there.