Q&A - Time to review partnership deeds and policies

Q. I am a partner in an accountancy practice where one partner has been underperforming. The situation has gone unaddressed because others thought it easier to just retire him in two years when he reaches 65. My concern is whether the same age discrimination rules apply to partners as they do to employees in respect of retirement age?

A. The law does not always recognise the difference in status between an employee and partner, treating both as 'workers'. Therefore a partner could bring an age discrimination claim against the practice as there is no longer a default or normal retirement age.

A recent similar case involving a solicitor went from the Employment Tribunal to the Supreme Court and back again. The solicitor, a partner in a law firm, was made to retire at the end of the year in which he turned 65. The Employment Tribunal felt the retirement age of 65 was objectively justified but the solicitor appealed. The Supreme Court held that the law firm did have legitimate aims in imposing a retirement age but these must be "social policy objectives" rather than just an age convenient for the firm.

The Supreme Court put the case back into Employment Tribunal to decide whether these social policy objectives were made out by making the solicitor retire at 65 rather than, say, 68 or 70. The retirement age was justified because it reasonably facilitated partnership succession, which balanced the needs of the firm, the partners and the aspiring solicitors.

As the justification of any mandatory retirement age will be fact specific, it would be unwise to rely on this case as legal authority for the forced retirement of your partner. You should consult an employment law specialist if you are considering this course of action. Alternatively you could raise your performance concerns with the individual in question.