Seldon v Clarkson Wright & Jakes (Secretary of State for Business, Innovation and Skills intervening)
| Jurisdiction | England & Wales |
| Judge | Sir Mark Waller,Lord Justice Hughes,Lord Justice Laws |
| Judgment Date | 28 July 2010 |
| Neutral Citation | [2010] EWCA Civ 899 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2009/0149 |
| Date | 28 July 2010 |
[2010] EWCA Civ 899
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE Employment Appeal Tribunal
Before: Lord Justice Laws
Lord Justice Hughes
and
Sir Mark Waller
Case No: A2/2009/0149
UKEAT/0063/08
Robin ALLEN Q.C. and Richard O'DAIR (instructed by Equality & Human Rights Commission) for the Appellant
Thomas Croxford (instructed by Messrs Clarkson Wright & Jakes) for the Respondent
Dinah ROSE Q.C. and David PIEVSKY (instructed by Treasury Solicitor) for the Secretary of State for Business, Innovation and Skills
Hearing dates: 29 th & 30 th June 2010
Sir Mark Waller:
Introduction
Mr Seldon the appellant was a partner in the respondent firm of solicitors (the firm). He was compulsorily retired in accordance with the terms of the partnership deed at the end of the year following his 65 th birthday. He brought a claim for unlawful direct age discrimination. The Employment Tribunal (the ET) concluded that he had suffered less favourable treatment as a consequence of his age, but that his treatment was justified. The ET held that his firm had established that the clause in the deed had three legitimate aims:—
(1) ensuring associates were given the opportunity of partnership after a reasonable period.
(2) facilitating the planning of the partnership and workforce across individual departments by having a realistic long term expectation as to when vacancies will arise.
(3) limiting the need to expel partners by way of performance management, thus contributing to the congenial and supportive culture in the firm.
(1) and (2) are identified for short as “dead men's shoes” and (3) as “collegiality”. The ET also held that the term was a proportionate means of achieving those aims.
He appealed to the Employment Appeal Tribunal (the EAT) who upheld the ET's decision save that in relation to aim (3) ‘collegiality’, they held that the firm were not entitled to form the view that the aim justified fixing the age at 65. The EAT decided to remit the matter to the same ET in the light of the EAT's findings.
The matter has not been remitted pending Mr Seldon's attempt to appeal the EAT's decision to the Court of Appeal. That attempt has not been straightforward and an explanation of why I say that will help to identify how the issues have come to be raised. The permission application was adjourned into Court with the appeal to follow if permission was granted on 8 th March 2009 by Wall L.J. (as he then was). It was at this stage that Mr Robin Allen Q.C. was instructed to act for Mr Seldon. He was Counsel for Age UK (as they are now called and as I shall call them throughout this judgment) in proceedings brought by them against the Secretary of State for Business Innovation & Skills challenging the lawfulness of the Employment Equality (Age) Regulations 2006 (the Age Regulations). In those proceedings five questions relating to the interpretation of Council Directive 2000/78/EC had been referred to the ECJ [see R(Age Concern England) v Secretary of State for Business Enterprise and Regulatory Reform [2009] ICR 1080]. The ECJ had handed down their judgment on 5 th March 2009 which left certain important questions relating to justification to the national court. The ECJ had held that provided the UK Government had legitimate ”employment policy, labour market, and vocational training aims” and provided the Age Regulations were a proportionate means of achieving those aims, the Age Regulations would be lawful. The court held that it was for the national court to resolve those points.
The hearing before the national court to resolve the issues was to take place before Blake J. on 16 th July 2009 when the permission application, adjourned into Court by Wall L.J. in these proceedings, came before the Court of Appeal on 13 th July 2009. Mr Allen Q.C. wished to amend his Notice of Appeal in Mr Seldon's appeal to argue questions of vires similar to those being argued before the ECJ and Blake J. In the result the application for permission to appeal in these proceedings was adjourned pending the judgment of Blake J. That judgment was handed down on 25 th September 2009. It held that the Age Regulations were lawful on the basis that the Government had established legitimate “employment policy, labour market and vocational training” aims and that the Age Regulations were a proportionate means of achieving those aims.
It is relevant for the points which arise hereafter just to say that the attack by Age UK was (a) on Regulation 3 because it allowed direct age discrimination to be justified if aims were legitimate and means were proportionate without identifying the aims, and (b) on Regulation 30 which in the employer/employee context provided that nothing in the Age Regulations rendered unlawful the dismissal of a person over the age of 65 when the reason for dismissal was retirement again without specifying the aims.
Age UK did not appeal the judgment of Blake J. Mr Allen Q.C. could not thus now on behalf of Mr Seldon take the same points on vires as were argued before the ECJ and Blake J. However what he did wish to argue (in addition to points argued before the EAT) was that (1) the judgments of the ECJ and Blake J. in the Age UK litigation had held in the context of Age UK's attack on the legality of the Age Regulations that justificatory aims must be of a “social policy/public interest nature”; (2) that the firm before the ET had not established “social policy or public interest” aims; in so far as they had established the aim of encouraging associate retention and internal planning those were individual aims peculiar to their own situation; and (3) thus that the ET had erred in law in holding that such aims were legitimate.
On 11 th November 2009 Maurice Kay L.J. directed that an amended notice of appeal be filed by 25 th November 2009. The amended notice was filed and in the result the points sought to be raised on behalf of Mr Seldon became (and I summarise from Mr Allen's latest skeleton) the following:—
(1) The point identified in paragraph 6 above which if right would be likely to outlaw any retirement clause in any partnership deed – and was thus of some importance; [Ground 1A]
(2) That a different less discriminatory clause could have been tailored to fit at least the “dead men's shoes” aims; [Ground 1B]
(3) The choice of 65 was not proportionate; it is asserted that the EAT were right in condemning the assumption made in relation to the collegiality aim and were wrong not to take the same view in relation to the “dead men's shoes” aims; an older age even by a year would have been less discriminatory and/or there was no evidence that 65 was necessary to encourage associates to stay; [Grounds 5 and 6]
(4) It was wrong to concentrate on the justification of the clause as opposed to whether the application of the clause to Mr Seldon was justified; [Ground 7]
(5) The fact that Mr Seldon as a partner had agreed the clause as a partner was irrelevant; [Ground 9]
(6) Ex post facto justification of the rule was not legitimate; a justificatory aim must be one upon which reliance was placed at the time; [Ground 10A]
(7) The ET was wrong to rely on evidence from the firm alone without evidence from comparable firms; [Ground 10B]
(8) The ET erred in finding compulsory retirement was justified in the absence of evidence that the incidence of partners wanting to stay on was likely to be significant; [Grounds 11,12 & 14]
(9) Aim (3) collegiality could not possibly have the necessary element of public interest or social policy; [Ground 13A]
(10) The collegiality principle was applied in a discriminatory fashion because under 65 partners underperforming were negotiated out of the partnership; [Ground 13B]
(11) Remittance to the same ET was wrong; [Ground 15].
At the outset of the hearing before us we granted permission to appeal. Whether we should have done so on all grounds is debatable, but arguing about arguability would not have been conducive to a good use of time.
The Legal Framework
The key provisions are set out in the judgment of the EAT and I gratefully adopt the quotations from that judgment.
“12. Council Directive 2000/78/EC establishes a general framework for equal treatment in employment and occupation. This is the framework Directive which sets out the core principles of EU law. Some of the recitals have been relied upon in this case, together with relevant provisions of the Directive:
“Whereas …
…
(14) This Directive shall be without prejudice to national provisions laying down retirement ages.
…
(25) The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.
…
Article 1: Purpose
The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the...
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