Time Poins; Age Discrimination)
The Claimant was an Equity Partner of the First Respondent, a firm of accountants. The LLP Members’ Agreement provided for all Partners to have a normal retirement age of 60 but with the First Respondent having discretion to extend beyond that time, on terms to be determined by the Managing Partner, in the event of there being a business need.
The Claimant wished to stay on after his normal retirement date of 30th April 2018. In October 2017, the First Respondent decided that the Claimant should continue for two years beyond his normal retirement date but only as an ordinary (i.e. non-equity) Partner. An agreement was entered into providing for this change in the Claimant’s status, which took effect after 30th April 2018.
In September 2018, the Claimant learned of proposals to sell the First Respondent’s business. In December 2018, he was informed that he was not entitled, as a non-equity Partner, to a share in the proceeds of any sale. The Claimant took legal advice and in January 2019 brought a claim for direct age discrimination in the Employment Tribunal, alleging losses including in relation to the proceeds of sale of the First Respondent’s business.
At a Preliminary Hearing, the Employment Tribunal held that the Claimant’s claim was in relation to a rule which had resulted in his demotion from Equity Partner to ordinary Partner and was ‘conduct extending over a period’ which was continuing at the date of presentation of the claim, so that it had been brought within the statutory time limit set out in section 123 of the Equality Act 2010.
The Respondents appealed, contending that that claim was about the continuing consequences of a one-off act (i.e. the change in the Claimant’s status from Equity Partner to ordinary Partner) and was not in respect of the continuing operation of a discriminatory rule or practice. The Employment Tribunal had found that if the Respondents were correct about that then the claim had been brought 5.5 months out of time.
The Employment Appeal Tribunal allowed the Respondents’ appeal, holding that the Employment Tribunal had erred in finding that the claim was in respect of ‘conduct extending over a period’, because the act of which complaint was made was the one-off exercise of the discretion to continue the Claimant’s membership of the LLP after his normal retirement date on inferior terms and the resulting change in the Claimant’s status, and not the continuing application of a discriminatory rule or policy. The case was remitted to the Employment Tribunal for it to consider whether to extend time for the presentation of the claim.
Mathew Gulick QC HHJ
[2021] UKEAT 0238 – 20 – 2406
Bailii
England and Wales
Updated: 07 July 2021; Ref: scu.663593
