A tribunal has recently found that a law firm directly discriminated against an equity partner because of his age by denying his request to postpone retirement. This case underscores the importance for employers of thoroughly evaluating the rationale and evidence justifying age discrimination.
Age discrimination
An employer will be liable for direct age discrimination if it treats an employee less favourably because of age and it cannot show that such treatment was a proportionate means of achieving a legitimate aim. Age discrimination is the only type of direct discrimination that can be justified in this way. In order to be legitimate, an employer's aim must accord with a social policy aim, for example, "inter-generational fairness" and "dignity".
Background
The case revolved around Martin Scott, the head of the construction and engineering department at Walker Morris, who was forced to retire at the age of 63. Mr Scott had been with the firm since 1992 and had become an equity partner in 1997. In 2018, Walker Morris implemented a policy requiring partners over the age of 60 to reapply for their positions, demonstrating that their future contributions would be of an "exceptional nature." Mr Scott was granted a three-year extension in 2020 but was denied a further extension in 2023, leading to his forced retirement.
Walker Morris acknowledged that refusing Mr Scott’s request to postpone retirement because of his age was less favourable treatment. Nevertheless, the firm contended that such conduct was justified as a proportionate means to achieve legitimate business objectives, being necessary to safeguard the firm's interests and promote inter-generational fairness between partners.
Tribunal’s finding
The tribunal ruled unanimously in favour of Mr Scott, finding that Walker Morris had unlawfully discriminated against him because of his age. The tribunal found that the firm’s aims were legitimate and fell within the social policy aims of dignity and intergenerational fairness. However, it concluded that the firm's treatment of Mr Scott was not an appropriate and reasonably necessary way of achieving those aims. The tribunal's decision highlighted the lack of objective evidence backing up Walker Morris’s justification. The firm argued that older partners "slow down" and that their policy was necessary for workforce and succession planning. However, the tribunal found no evidence of poor performance of partners or any tension between different generations of partners. The tribunal emphasised that discriminatory assumptions about older partners' performance and energy levels were not supported by the evidence presented.
In addition, the tribunal found that the firm could have used less discriminatory ways to achieve its aims. For example, it could have implemented career conversations with partners to identify short-term and long-term career goals.
Comment
This case serves as a reminder to employers that although it is possible to justify direct age discrimination, careful thought should be given to justification and this must be supported by objective evidence without reliance on stereotypes or assumptions about age.
Frances Rollin