16 May 2014: As is commonly known, it is now unlawful to require a person to retire by reason of age unless the requirement can be justified as a proportionate means to achieve a legitimate aim. Imposing retirement on air traffic controllers may be justified. Forcing Mike in accounts to retire might be much harder.

In Seldon v Clarkson Wright & Jakes this week, the EAT said that compulsory retirement, in that instance, was lawful. Mr Seldon was a partner in a law firm who was forcibly retired. Back in 2007 the EAT held that the provision in the deed was in that case objectively justified by the aims of retention and recruitment, workforce planning and collegiality / performance.

Mr Seldon appealed saying that there was no evidence that performance would reduce at the age of 65. After a convoluted series of appeals the case was kicked back to the original Tribunal which held that whilst the firm might have selected other ages (say 64 or 66) as the mandatory retirement age instead, retirement aged 65 was still objectively justified.

Mr Seldon appealed to the EAT once more, this time saying that if the firm’s aims could also have been achieved by a retirement age of 66, then the firm could not justify maintaining a lower retirement age for partners. The EAT disagreed.

If Mr Seldon’s arguments were correct, no retirement age could ever be justified because the selected retirement age plus a day would always be less discriminatory than the chosen retirement date.

Comment: Most employers should not see this as a green-light to re-impose compulsory retirement age 65. Each case will be decided on its own facts and few employers will be brave enough to chance their arm in the Tribunal. Employers can have Protected Conversations with employees to discuss retirement planning. Otherwise employers should follow their normal procedures to manage performance.

With thanks to Blackstone chambers for news of this decision.