Discrimination for the sake of decorum? UK Supreme Court to hear case on mandatory retirement for partners

Law firm partners approaching their supposed retirement age will be keenly watching UK legal news as Supreme Court hearings in that country open today in the case of Seldon v. Clarkson Wright and Jakes, which will determine whether an appeals court was justified in allowing the law firm to retire a partner, Leslie Seldon, at age 65.

Last year, the UK and other jurisdictions (including  Canada) scrapped the mandatory retirement age in the public sector, so a lot has happened since Seldon first challenged the firm’s partnership deed five years ago.

On the surface, this case is about whether a retirement contract between an employer and “employee” (whether shareholder or not) can be enforced. On an entirely different level, though, the case is also about the kind of dignified exit that law firm partners can expect as they near the end of their careers.

It’s gotta be hard for judges ruling on these matters to set aside the professional decorum and come to a decision that might, on one hand, allow for a kind of institutionalized discrimination; or on the other hand, force law firms to bluntly extricate peers who may have become dead wood.

Seldon’s case will end today, and a judgment will be handed down in a few weeks. Until then, you can read a lot more about mandatory retirement for law firm partners in the January issue of Lexpert.

Contributor Sandra Rubin delves into the Canadian context of law firm mandatory retirement with a feature that reports on the case of John McCormick, a Faskens lawyer whose successful challenge at the BC Human Rights Tribunal has since been appealed to the BC Supreme Court.

Rubin’s piece touches on the delicate conversation that firms must begin with partners, if mandatory retirement for partners is truly deemed unenforceable.

Here are a few choice quotes from the piece:

“You have to actively manage each situation. You can’t wait until someone hits 65 to sit down and have a conversation about their plans. You have to grab the bull by the horns.” – Paul Boniferro, McCarthy Tétrault LLP

“… there’s no question, if somebody doesn’t meet performance standards they can be exited from the partnership. You don’t want to go there, but that may become more the norm. Just because you can’t be forced out at 65 doesn’t mean you can sit around and do nothing and collect a paycheque.” – Sean Weir, Borden Ladner Gervais LLP

“As it stands now, if I’m an older partner and I’m asked to leave, the rights I have on departure are covered by a partnership agreement. So I get certain payouts — work in progress and things like that. But when I read [McCormick] I wondered whether, if a partner is asked to leave, I can argue that that partner is entitled to severance.” – Mary Porjes, Porjes Walsh Barristers & Solicitors

– David Dias

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