In general, since the abolition of DRAs in 2011, businesses cannot just make people leave on their 65th birthday. However, there has always been an exception to the DRA rule, which was the subject of a recent court case, Seldon versus Clarkson Wright & Jacques (CWJ).
In 2007, Leslie Seldon brought a legal action against CWJ, after being forced to retire from the partnership at 65, in accordance with the partnership agreement.
At the time, the DRA applied to employees but not to partners. The action was heard in the Supreme Court in 2012, and then passed back to the employment tribunal for a final decision.
Legitimate company strategy
The tribunal concluded it could be difficult to argue against making Seldon leave on the basis of age discrimination if the chosen retirement date was due to a well thought-out and carefully explained policy that is legitimate for the company concerned.
In the Seldon case, the reasons given by the partnership for the choice of a DRA were structural: to give junior and associate solicitors an opportunity of partnership within a reasonable time. This would create an incentive to remain with the firm, facilitate workforce planning and limit the need to take action against underperforming partners.
If an employer can demonstrate a retirement age is part of a legitimate company strategy, they can still enforce it.
Alan must find out whether his firm has such a policy, and, if so, whether it is a proportionate means of achieving a legitimate aim.
He should also find out when that policy was set. The Seldon case found retirement at age 65 was reasonable in 2006, but we are now in 2013, the DRA has been abolished and the state pension age is rising.
Mike Morrison is head of platform marketing AJ Bell