Age discrimination law and the default retirement age has been thrown back into the spotlight after an employment appeal tribunal (EAT) ruling, weeks before the final decision on Heyday is expected.

An EAT last week ruled that Leslie Seldon, a former senior partner at law firm Clarkson, Wright and Jakes, was wrongly forced to retire at 65, because of a discriminatory assumption that his work had “dropped off” since passing the default retirement age.
Under age discrimination laws introduced in 2006, partners are excluded from the default retirement age, but can be justifiably made to retire at 65 to achieve business aims – for example, to aid workforce planning.

However, while the original employment tribunal ruled in the Kent-based law firm’s favour, the EAT judge rejected Clarkson’s argument that partners should be retired at 65 because their performance reduced from that age.

Justice Elias said “there was no evidential basis for that assumption”. He remitted the case back to the original tribunal to assess whether there were other reasons which could justify their retirement age of 65.

Schona Jolly, employment and discrimination barrister at Cloisters, said: “This decision, concerning the compulsory retirement of partners from a solicitors’ practice, provides welcome guidance on the need for tribunals to avoid making age stereotypical assumptions about those reaching retirement age.

“In particular, it ought to warn employers off from making unfounded assumptions that a person’s work performance drops away at around age 65.”

Meanwhile employers are eagerly awaiting the final European Court of Justice (ECJ) decision regarding the Heyday case, which challenages the default retirement age for all employees, expected in early 2009. The ECJ’s advocate general ruled against the charity’s challenge earlier this year.

Although not binding, the advocate general’s opinion may be an indication of the ECJ’s decision, expected early next year.