Age Discrimination – Direct Age Discrimination – section 13 Equality Act 2010 – burden of proof
The Claimant was a solicitor who had not been offered a new partnership under a restructuring exercise carried out by the Respondent firm, in which he had been a limited equity partner (‘LEP’). He complained this was because of his age (being aged over 45) and also made various other complaints about his earlier treatment by the Respondent in terms of an earlier decision that his poor performance meant he should leave the partnership (this decision being reversed after the Claimant had objected) and in respect of the subsequent performance process applied to him, the target set and the feedback the Respondent had given.
The ET rejected the Claimant’s complaints about this earlier treatment. As for the Respondent’s decisions as to which of the former LEPs should be offered the new partnerships, although the ET accepted that the statistics relied on by the Claimant showed that ‘the prospect of obtaining equity membership diminishes with the age of the candidate’, it did not consider that the statistical picture did sufficient to shift the burden of proof to the Respondent. It accepted the Respondent’s evidence that it had applied a multi-factorial approach to the question of selecting new partners and tested the Respondent’s case in respect of each of the LEPs relied on by the Claimant as actual (statutory) and hypothetical comparators. Having done so, the ET accepted that decisions were made on an individual basis. It did not accept that any of the other LEPs could serve as statutory comparators (there were material differences in circumstances). Asking itself why the Claimant had not been offered one of the new partnerships, the ET was satisfied that this was unrelated to his age but was due to concerns as to his performance and a lack of confidence that he would be able to take the business forward. The Claimant appealed.
Held: dismissing the appeal.
The ET had been entitled to conclude that the statistical picture alone did not shift the burden of proof to the Respondent. It had then considered whether the Claimant had made out a prima facie case in terms of the comparisons he relied on but concluded that there were material differences between his case and those of the other LEPs. It had not thereby erred in its approach to the burden of proof but had reached a permissible conclusion that the Claimant had not shown facts from which an ET could conclude that there had been unlawful discrimination. Equally, in reaching that conclusion, the ET had not erred in its approach to the question of comparison: it had understood that it was having to assess the question of less favourable treatment – a comparative exercise – but did not consider that the actual comparisons relied on by the Claimant were apt. Allowing for the possibility of a hypothetical comparator, the ET had referred back to its findings as to why the Respondent had taken the decisions it had in respect of the Claimant and the other LEPs. Having tested the Respondent’s explanation, the ET was entitled to conclude that the Respondent had made good an explanation for its decisions that was wholly unrelated to age.
Eady QC HHJ
[2016] UKEAT 0290 – 15 – 2807
Bailii
England and Wales
Employment, Discrimination
Updated: 20 January 2022; Ref: scu.567892
