Seldon v Clarkson Wright and Jakes (a Partnership) – direct age discrimination

It’s not every week that you get two discrimination-related judgments from the Supreme Court but that’s what we’ve got this week with the handing down of the judgments in Homer v West Yorkshire Police and Seldon v Clarkson Wright and Jakes This is a case concerning direct age discrimination and, specifically, the justifications that can be used for direct age discrimination.

The facts in Seldon v Clarkson Wright and Jakes (a Partnership)

Mr Seldon (“the Appellant”) commenced working for the Clarkson Wright and Jakes (“the Respondent”) in 1971 and was made an equity partner in 1972. The partnership agreement that Mr Seldon signed in 2005 stipulated that, similar to the previous partnership agreements, partners whom attained the age of 65 whilst working for the firm would retire the following December. Mr Seldon did in fact reach the age of 65 in 2006 but realised that he would have to keep working because of his various commitments.  The partners disagreed with this and offered Mr Seldon a £30,000 ex gratia payment. Mr Seldon did not believe that this was sufficient and notified the partners that he was considering litigating under the (as they were then) Employment Equality (Age) Regulations 2006, now replaced by the Equality Age 2010. The partners subsequently withdrew their offer of the ex gratia payment. Mr Seldon proceeded to submit claims of direct age discrimination and victimisation in March 2007.

Mr Seldon failed at the Employment Tribunal as the Employment Tribunal believed that the difference in treatment had been justified by particular aims (giving associates an opportunity of partnership, facilitating workforce planning, and limiting the need to expel underperforming partners). Mr Seldon therefore appealed to the Employment Appeal Tribunal which remitted the case on one point (namely whether another age than 65 could have been used). The Court of Appeal dismissed Mr Seldon’s appeal and he appealed to the Supreme Court on the following grounds:

  1. The tests for direct and indirect age discrimination justification should not be fused
  2. The treatment afforded should not be justified generally but in relation to Mr Seldon’s situation

The law relating to direct age discrimination

Under Regulation 17 of the Age Regulations (now under the Equality Act 2010) an employer (including partnerships) are prohibited from treating an employee less favourably than other employees because of their protected characteristic (in this case age). In this case it was accepted that the treatment afforded to Mr Seldon was direct age discrimination – it was treatment directly related to his age (his being forced to retire at the age of 65). The interesting element in Seldon was the Supreme Court’s elaboration on the justification for direct age discrimination (direct age discrimination is the only incident of direct discrimination that is possible to be justified).

Direct age discrimination could be justified under the Age Regulations if the difference in treatment on the grounds of age is:

  1. Objectively and reasonably justified
  2. Consistent with the social policy aims of the state; and
  3. Appropriate to the aim and reasonably necessary to achieve it

The Supreme Court’s decision in Seldon v Clarkson Wright and Jakes (a Partnership)

The Supreme Court rejected Mr Seldon’s appeal and remitted the case to the Employment Tribunal on the issue specified above (whether an age other than 65 could have been used). The Supreme Court considered that the original Employment Tribunal had sufficiently distinguished between the justifications for direct and indirect discrimination. Further, the use of a general rule instead of using Mr Seldon’s particular circumstances was also justified.

Our specialist employment lawyers’ thoughts on Seldon v Clarkson Wright and Jakes (a Partnership)

This case demonstrates that claims for direct (and indirect) age discrimination can often be difficult to pursue. In particular, a claim for direct age discrimination can be defeated by the employer showing that there was a justification for the treatment afforded (although in many cases the employer won’t be able to credibly demonstrate that its treatment was reasonable and objective).