I AM sure there are a number of firms of solicitors who are breathing a sigh of relief following the employment tribunal decision in Seldon v Clarkson Wright and Jakes, which has been reported recently. Although not binding on other tribunals it has given the first indication of how the tribunals will view the enforced retirement of partners in solicitors firms.
As many of you will know with the advent of age discrimination, to prevent the enforced retirement of partners within partnerships being discriminatory, the firm would have to objectively justify their decision to have a retirement age. I
n simple terms they would need to come up with some good sound business reasons why they need it. For employees there is a default retirement age of 65 (which is being challenged in the European Courts), however this does not apply to partners.
To explain the Seldon case, Clarkson Wright and Jakes is a firm of solicitors whose partnership deed provided for compulsory retirement at 65. Mr Seldon had been a partner of the firm since 1972 and after his retirement had hoped to do some consultancy work. The firm was not interested in him continuing and Mr Seldon was compulsorily retired on 31 December 2006. He brought claims of direct age discrimination and victimisation before a tribunal.
The tribunal accepted that, on the facts of this case, the compulsory retirement of Mr Seldon was objectively justified for a number of reasons. In making its decision the tribunal considered factors such as the fact that the retirement age applied to all partners, that Mr Seldon had made no attempt to have the compulsory retirement age removed, and probably most importantly, the need for the firm to be able to offer advancement to solicitors. Solicitors working within the firm needed to see that there was the opportunity to progress. The tribunal also took into account the that the culture of Clarkson Wright and Jakes was such that they did not aggressively performance manage partners out of the firm and therefore there needed to be a set retirement age to allow succession.
So what does all this mean for the various firms in the city? Well comment in the Law Society Gazette this week is that the decision is more likely to be followed in cases involving similar types of firm, where there is an emphasis on the collegiate culture.
It suggests that while managing under-performance by expelling a partner may conflict with the culture of a firm like Clarkson Wright and Jakes, the argument might not work ‘if raised by a larger firm with a more competitive culture and a corporate style of management’.
Mr Seldon has through his solicitors indicated that it is his intention to appeal the decision, so watch this space…
* Nicky Benson