A solicitor fighting a test appeal after being forced to retire at 65 has a "fundamental" right not to be discriminated against because of his age, an employment tribunal was told yesterday. Leslie Seldon, a former partner at the Kent-based law firm Clarkson, Wright and Jakes (CWJ), is challenging an earlier ruling that he was not discriminated against when forced to retire.
The appeal, being heard by the Employment Appeal Tribunal president, Mr Justice Elias, in London, was told Mr Seldon feels he still had a valuable contribution to make, and the right to an autonomous life.
Mr Justice Elias noted that potential differences in standards and whether someone would admit their failings is something businesses had to consider. It is something that is "inevitably going to happen" if there is an "open-ended rule" about retirement age.
He went on: "There comes an age when people are no longer able to perform at the same level so there comes a point where companies have to consider what age that might be.
"It is just human to say perhaps that we all lose our marbles as we get older. There does not seem to be evidence as to when and if people start to fail, and to say people start to fail at 60, 65 or 70, or if it may vary from profession to profession."
The case is being backed by Age Concern and the Equality and Human Rights Commission is making arguments within the hearing, challenging assumptions that older people may be more likely to under-perform. A challenge to the British legal retirement age of 65 is starting this month in the European Court of Justice.
Richard O'Dair, for Mr Seldon, told the tribunal: "The prima facie right not to be discriminated against on the ground of age is no less fundamental than the equivalent rights on the grounds of race or sex. Given the fundamental nature of the right not to be discriminated against on the grounds of age, any exception to the right on the justification defence should be strictly construed."
The original tribunal had been given "no appreciable evidence" about a potential drop in performance between 60 to 70 or even at what age declining standards may set in, Mr O'Dair said. Discrimination laws introduced in October 2006 ruled that 65 should be the default retirement age for employees but specifically excluded partners in firms, triggering confusion for professionals in fields such as the law, accountancy and surveying.
In January, a tribunal found that CWJ had been justified in forcing Mr Seldon's retirement to achieve several business aims. These included giving younger associates the chance of partnerships, creating realistic expectations of future vacancies, the need to maintain a congenial work atmosphere and to avoid confronting partners with under-performance near retirement.
Mr O'Dair said alternatives were available to CWJ which could have been just as effective while also maintaining standards, he suggested. A consultancy could have been offered or "simply negotiating all partners out of the partnership if it became necessary", he added.
The hearing continues.