A solicitor who was forced by his law firm to retire at 65 will lodge a test appeal today, claiming that he was the victim of age discrimination.

In a case with wide ramifications for all firms that have a fixed retirement age for employees, Leslie Seldon, a former senior partner, is challenging a tribunal ruling that he was not discriminated against when forced by his Kent law firm to retire at 65.

“I simply wished to carry on working as I understood the new age discrimination legislation entitled me to do,” he said. “There are a lot of fit 65-year-olds eager to work and able to make a valuable contribution.”

The appeal, to be heard today by Mr Justice Elias, president of the Employment Appeal Tribunal, now also has the backing of the Equality and Human Rights Commission, which is challenging what it says is the assumption that people become more likely to underperform as they get older. The commission will make representations on the human rights implications of the case.

Mr Seldon's appeal comes in the same month as a challenge was heard to the legal retirement age of 65 in the European Court of Justice. That test case, which is backed by Age Concern, claims that the Government was in breach of the EU's equal treatment directive by imposing a mandatory retirement age for employers.

Jo Davis, partner and head of the employment team at BP Collins, the law firm acting for Mr Seldon, said: “We expect the Employment Appeal Tribunal to provide some clarity to the legislation.”

The two cases, she said, highlighted the difference in age discrimination law. When introduced in October 2006, the legislation stated that 65 was the default retirement age for employees but specifically excluded partners in firms, causing confusion for lawyers, accountants, surveyors and other professionals.

Ms Davis added: “If the European Court of Justice is successful and our appeal is not, we could find ourselves in the reverse situation to that legislated for: employees able to choose to work beyond 65, and partners who are forced to retire. Until we have clarity, many partners may struggle to work beyond 65 if they wish to.”

Mr Seldon's law firm, Clarkson Wright and Jakes, argued that it was proportionate to force partners to retire in order to achieve a number of business aims, and denied discrimination on the ground that it was justified. The tribunal agreed. It ruled that it did not matter whether those aims had been fulfilled in Mr Seldon's case.

The tribunal agreed that the retirement clause could be justified by a number of the partnership's aims for its business. These included a need to provide partnership opportunities for the junior lawyers, helping with planning of the workforce by creating realistic expectations of vacancies, and a desire to limit the expulsion of partners as a result of performance management.

Mr Seldon said: “It was difficult suing the firm where I'd been a partner for 35 years, but I saw no real alternative on a business basis. The performance of everyone working in a law firm, including the partners, has to be managed in a positive and supportive way. That's how you get the best out of people.”

He said that although many people wanted to retire as soon as possible others wanted to carry on. “If they are making a proper contribution there's no reason why they shouldn't. Retirement should not now be justified on age — otherwise the new legislation is meaningless. The issue is the same for all firms irrespective of size: it's a matter of business sense.”

The tribunal found that the firm had victimised Mr Seldon by withdrawing a promised goodwill payment when he announced his intention to challenge the retirement policy.

Pending the appeal ruling, many claims are being put on hold.

In another case Peter Bloxham, a former insolvency partner with the City law firm Freshfields, Bruckhaus Deringer, also sued for age discrimination. His claim related specifically to the circumstances surrounding changes to the firm's pension scheme. The tribunal ruled against him in October last year.

Lawyers are keenly awaiting the outcome of Mr Seldon's case and hope that the Employment Appeal Tribunal will lay down guidelines on how the legislation should operate.

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