GP practices will be able to enforce a mandatory retirement age for partners following a landmark legal ruling on age discrimination – but lawyers are warning they will need strong justification for nominating a specific retirement age.
The Supreme Court has ruled that a mandatory retirement age in partnership agreements is ‘capable of justification' because it is founded on principles of ‘dignity' and the need to avoid ‘performance managing a partner out'.
The decision was reached last week in the case of Selsdon v Clarkson Wright and Jakes, a case in which a solicitor was forced to retire at the age of 65 as provided for in his firm´s partnership agreement. Mr Seldon, the firm´s senior partner did not want to retire.
The case is now returning to the Employment Tribunal to consider whether the firm´s selection of the age of 65 is justifiable.
The ruling could potentially affect a large number of GPs who continue to work after 65. Figures from the NHS Information Centre show there are 955 GPs aged between 65 and 69 and 406 GPs aged over 70.
The court held that an individual could be forced to retire as long as the partnership could show it had a ‘legitimate aim' and that the age chosen was ‘proportionate' in the circumstances.
David Walker, employment law partner in law firm Dundas &Wilson said: ‘Any medical practice should be dusting down their partnership agreement to see if this and other related issues need reviewed. I´m aware from acting in similar litigation for a medical practice that this is becoming a growing issue.'
Michael Rourke, an associate at Lockharts solicitors, told Pulse it was ‘only a matter of time' before the stipulation of a specific age for mandatory retirement from a partnership was tested in law.
"Many GP practices would want to do this but it´s not yet tested in law,' he said. ‘If they want to do it they´ll have to have expert advice and think very carefully about specifying an age.'
‘The mandatory retirement age of 65 has been got rid of for employees - before that partnerships might have claimed that the age of 65 was in force elsewhere. Now they can´t claim that.'
Dr Peter Holden, GPC negotiator, said many practices had introduced stipulated retirement ages into their partnership agreements in the 1980s and 90s.
‘The real problem now is going to be what happens in practices that have a mandatory age of 65 to GPs who have to wait until 68 to draw their pensions,' he said. ‘What happens to those guys?'
‘The next ruling on the specific age is going to be crucial.'
Dr Peter Swinyard, chair of the Family Doctor Association, said the issue was ‘fraught':
‘With the savaging of the pension scheme younger GPs will have to work until they are 68 to get a pension. They simply won´t be able to retire at 65.'
‘On the other hand it would be barking to have all GPs working until they are 68. That might be all right for a High Court judge but not for a GP in the cut and thrust of practice.'
‘Some GPs over 65 are a pain in the arse and it might be quite good for their practice to have a nice way of getting rid of them. But sometimes the eldest doctor is much-valued for their knowledge of patients and their organisational memory is something to be cherished.'
‘In solicitors firms, sometimes the older partners are kept on as consultants and it´s possible general practice might move in that direction. It might be best to have a mandatory retiring age of 65, reviewable annually.'
Can partners be forced to retire?
A partnership introducing a mandatory retirement age would, if a forced retirement was challenged, have to justify:
1) That the imposition of a mandatory retirement age was to avoid the need to ‘performance manage' a partner out of the partnership, including any challenge on the basis that less discriminatory measures would have achieved this aim.
2) That the age chosen is a both appropriate and (reasonably) necessary to achieving those.
Source: Lockharts Newsletter 2012
