Summer 2014
Commercial
Agency Update –
Briefing Note
With Thom Vaughan & Camilla Waszek
“At What Age
Can a Commercial
Agent Retire?”
In Arthur Miller’s touching play about the flip side
of the American dream, “The Death of a Salesman”,
protagonist Willy Loman marvels at the longevity of
legendary salesman Dave Singleman:
“And when I saw that, I realized that selling
was the greatest career a man could want.
’Cause what could be more satisfying than to
be able to go, at the age of eighty-four, into
twenty or thirty different cities, and pick up
a phone, and be remembered and loved and
helped by so many different people?”
This quote came to mind recently when speaking to
a commercial agent about various issues surrounding
his sales agency. During the course of our conversation
said agent revealed that he was in his late 70’s. I
queried whether he had considered the possibility
of retirement but was hastily told, in no uncertain
terms, that this was not on the agenda. In fact, he was
actively considering a further commercial venture to
supplement his agency activities.
I have met a number of
agents over the years who
continue acting, often with
great distinction, despite
being well into their 70’s or
80’s. Clearly some will do it
for financial reasons whilst
others, like the mythical
Dave Singleman, do it
because that’s just who
they are and what they do.
Selling is intertwined with
their very being and they
get a great kick from it.
However, setting aside
such superheroes for the
moment, the question can
reasonably be asked “at
what age can a commercial
agent call it a day?”
Of course, an agent, or
principal for that matter,
can serve valid notice
on one another at any
point in time, so perhaps
the supplementary part
of the question relates
to compensation and
the question becomes
“at what age can an
agent call it a day and
still retain a right to
payment of compensation
(or indemnity) by the
principal?”
The Commercial Agents
(Council Directive)
Regulations 1993 state
that an agent may retire
on “grounds of [his] age…
in consequence of which
he cannot reasonably be
required to continue his
activities”.
The judge found that Mr
Abbott was entitled to
terminate on the grounds
of age as he had reached
the age of 65. He did not
There are no binding
need to show physical
higher court authorities
or mental wear and tear.
on this question; however,
The judge observed, ‘If
there are a few lower court the “age” is a reasonable
decisions. The finest is the retirement age I do not
reasoning in the 2004 case consider that the Claimant
of Abbott versus Condici
in practice has to prove
& Another, heard by His
much more.’ He then went
Honour Judge Mackie QC
on to consider “what age”
sitting at Central London
is a reasonable retirement
County Court. I do not say
age and reflected on the
that solely on the basis
differences across Europe,
that the claim was pursued specifically in Germany
by EAD Solicitors.
and France. He accepted
that “there may be more
This was a case brought
than one appropriate
by a commercial agent,
retirement age”; however,
Mr Abbott, against two
he was satisfied that the
of his principals. He had
age of 65 was “embedded
retired at the age of 65 and as a retirement milestone”.
sought compensation. The
He accepted that it was
Defendants led evidence
reasonable for Mr Abbott
of how fit Mr Abbott
to stop when he did.
remained at the date of
Of course, there have been
termination. There were
great social changes in
allegations that he was
the intervening decade,
“an active sportsman
including the arrival of
undertaking refereeing at
zero hour contracts, plus
the amateur rugby club
the pension fiasco forcing
level, golf, badminton and
many to work longer
hill walking.” In fact, the
than they had originally
judge found that he had
planned.
not played badminton for
40 years and was hoping to
return to hillwalking after
a hip replacement!
The government website
confirms that “Default
retirement age (formerly
65) has been phased out most people can now work
for as long as they want
to.” If this social norm
has changed, the question
then arises whether 65
still remains embedded
as a retirement milestone
and the default age at
which agents can retire
and maintain a right to
compensation.
For the Dave Singlemans
out there this issue may
never arise; however,
for those that cherish a
deserved break after a long
career it is an important
question to consider. It
is submitted that Judge
Mackie QC’s approach
remains correct – there
may be more than one age
at which it is reasonable
to retire; however, the
age of 65 is as close as
anything to being a
benchmark, even now, and
a commercial agent cannot
reasonably be expected to
continue beyond it, unless
by choice.
by Thom Vaughan, Solicitor,
EAD Solicitors LLP
www.eadsolicitors.co.uk
T: 0151 735 1000 | E: [email protected]
EAD Solicitors | Prospect House | Columbus Quay Liverpool | L3 4DB
EAD Solicitors LLP is a Limited Liability Partnership registered in England (registered number OC334289) and is authorised and regulated by the Solicitors
Regulation Authority (487037). A list of members of the LLP is available for inspection at our registered office Prospect House, Columbus Quay, Liverpool, L3 4DB,
together with a list of those non-members who are designated as partners. Any reference to a partner in relation to the LLP means a member or employee of, or
consultant to, the LLP.
Summer 2014
Commercial
Agency Update –
Briefing Note
With Thom Vaughan & Camilla Waszek