The Employment Appeal Tribunal has rejected the ‘stereotyped assumption’ that law firm partners will underperform by the time they reach the age of 65. However, the ruling otherwise backed a compulsory retirement age in a discrimination claim brought by former senior partner Leslie Seldon against Kent firm Clarkson Wright & Jakes. The case will now be reheard.

The original employment tribunal had accepted as legitimate three objectives behind the compulsory retirement age: ensuring that associates are given the opportunity of partnership after a reasonable period; facilitating planning by creating realistic expectations as to when vacancies in the partnership will arise; and contributing to the firm’s ‘congenial and supportive culture’ by avoiding the need to expel partners on the grounds of performance.

The EAT, led by Mr Justice Elias, upheld the first two grounds. However it found that while a congenial culture could be a legitimate aim, it rests on an assumption that performance drops off at 65. ‘It is not self-evident that performance will dip in that way at that age,’ the EAT ruled ‘and there was no evidence to support that proposition before the tribunal.’

Mr Justice Elias remitted the case for a rehearing by the same tribunal as he could not be sure it would have ruled the same way on the basis of just the first two objectives. However, he said the objective of collegiality could still carry ‘some weight’.

Clarkson managing partner Andrew Wright said he did not intend to appeal the decision: ‘In our view, there is every chance that the tribunal will find the retirement age was justified.’

Seldon’s solicitor, Jo Davis of Buckinghamshire firm BP Collins, said she was delighted with the finding on the performance assumption, although there are aspects of the decision, such as on the justification test and evidential burden, that she may wish to appeal.

She said: ‘Many older workers, such as Leslie Seldon, are entirely capable and willing to work beyond [65] and such blanket beliefs are iniquitous and unjustified.’