A solicitor fighting a test appeal after he was forced to retire at 65 has a “fundamental” right not to be discriminated against because of his age, an employment tribunal heard today.

Leslie Seldon, former senior partner at Kent-based law firm Clarkson, Wright and Jakes (CWJ), is challenging an earlier ruling that he was not discriminated against when forced to leave his job at 65.

Mr Seldon’s lawyer, Richard O’Dair, told the Employment Appeal Tribunal [EAT] in London: “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 appeal, being heard by EAT president Mr Justice Elias, was told that Mr Seldon feels he still had a valuable contribution to make and the right to an autonomous life.

It 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.

Mr Justice Elias noted that potential differences in standards and whether someone would admit their failings is something that businesses had to consider.

It is something that is “inevitably going to happen” if there is an “open-ended rule” about retirement age.

Mr Justice Elias noted: “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.”

The original tribunal had been given “no appreciable evidence” either way about a potential drop in performance between the ages of 60 to 70 or even at what age declining standards may set in, Mr O’Dair argued.

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 working in fields such as the law, accountancy and surveying.

The original tribunal found that CWJ had been justified in forcing Mr Seldon’s retirement in order to achieve a number of business aims.

These included giving younger solicitors the chance of partnership after a reasonable period, creating realistic expectations of future vacancies, the need to maintain a congenial working atmosphere and to avoid confronting partners with under-performance near to their retirement.

But Mr O’Dair argued that there were alternatives available which could have been just as effective while also maintaining standards. A consultancy could have been offered or “simply negotiating all partners out of the partnership if it became necessary,” he said.

Mr O’Dair argued: “We submit that the tribunal erred in law because there was a far simpler and less discriminating rule that could have achieved the aim of making space for those coming up from below that would not have discriminated to the same extent.”

The current situation has the effect that “a partner can be compulsory retired if there was no associate waiting in the wings to be promoted”, Mr O’Dair said.

The hearing is expected to last until Tuesday afternoon with a judgment to follow in the coming weeks.

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