Compulsory Retirement?

Last week our blog looked at the general points that employers should consider when the question of retirement arises. One important question is whether a compulsory retirement age should be included in any policy.


Until the 6th April 2011 there was, what was known as the “default retirement age” of 65, which meant that compulsory retirement of employees at or over 65 was permitted. Now however compulsory retirement age must be objectively justified.

This means that it is not impossible to still retire employees at 65, provided that 65 is an appropriate age.

There is a general assumption that if performance declines with age, whether that be due to competence or health, however those points on their own are not sufficient to justify a retirement age. There have certainly been a number of people who have been able to hold down high profile well after this age. For example look at Sir Alex Fergusson managing a successful Premier League side until the age of 71, when some would argue that due to the stress involve in that type of work, a retirement age of 65 would be justified.

The big question is what can justify a retirement age and this is something that has been looked into by the Courts in great depth.

In particular the case of Seldon v. Clarkson, Wright and Jakes found that there had to be proportionate and legitimate aims in setting a retirement age.

Seldon was the former partner in a solicitors firm who imposed a retirement age of 65 on their partners. The firm put forward 6 legitimate aims which included;

1 Ensuring associates were given the opportunity of partnership after a reasonable period as an associate, thereby ensuring that associates do not leave the firm;

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, this contributing to a congenial and supportive culture in the Respondent firm.

Perhaps unhelpfully, even tough this matter has gone all the way to the Supreme Court, there was no decision as to whether 65 was in fact the correct age. The implication of the case however is that provided there are legitimate aims that can be justified and supported by the employer then a retirement age will be capable of being enforced.

Overall employers should still treat compulsory retirement with caution and should instead try to adopt a much more flexible approach to retirement without any need to set ages.

Any issues with work carried out could be dealt with through the capability policy and procedures and illness and general health issues could be dealt with through an appropriate sickness absence policy, both of which all employers should have in place.