ML Scott v Walker Morris LLP

Background 1. The claimant was a partner in the respondent and its predecessor firms from May 1992 until 30 April 2023, most recently as an Equity Partner. On 13 September 2023 the claimant issued a claim of direct and indirect age discrimination in the Employment Tribunal following a period of early conciliation that started on 4 July 2023 and ended on 15 August 2023. 2. A Preliminary Hearing took place on 6 December 2023 before Employment Judge Cox. Case Management Orders were made at that hearing to prepare the claim for final hearing. 3. In a judgment sent to the parties on 23 February 2024 the claim of indirect age discrimination was dismissed on withdrawal. The hearing 4. There was an agreed bundle of documents running to 968 pages. Additional documents were added to the bundle, by consent, on the second day of the hearing. The Tribunal was provided with an agreed reading list, a chronology prepared by the respondent and opening written submissions on behalf of both parties, for which we are grateful. 5. We heard evidence from the claimant and, on behalf of the respondent, from 1. David Smedley, former equity partner and Head of Employment; 2. Malcolm Simpson, former Managing Partner; 3. Stuart Counsell, former non-executive consultant, and member of the respondent’s Board; and 4. James Crayton, partner and Head of Commercial. 6. Both parties produced written closing submissions, for which we are grateful, and which were supplemented by oral submissions. The issues 7. The issues that fell to be determined at the final hearing were clarified and agreed at the start of the hearing as being the following: Time limits 1. Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 5 April 2023 may not have been brought in time. 2. Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010: i. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? ii. If not, was there conduct extending over a period? iii. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? iv. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 1. Why were the complaints not made to the Tribunal in time? 2. In any event, is it just and equitable in all the circumstances to extend time? Direct age discrimination 3. The claimant’s age at the time of the alleged acts of discrimination was 63. He compares his treatment with people in their forties and fifties, and in particular with a hypothetical partner who was aged under 60. 4. Did the respondent do the following things? i. Did the Board refuse to approve the claimant’s application to extend his partnership and delay his retirement date from 30 April 2023 to 30 April 2025; ii. Did the Membership refuse to approve the claimant’s application to delay his retirement date from 30 April 2023 to 30 April 2025; and/or iii. Terminate the claimant’s membership on 30 April 2023? 5. The respondent admits that the application of its retirement age to the claimant, and the termination of the claimant’s membership of the LLP on 30 April 2023 was less favourable treatment because of age. Was the treatment set out at paragraphs 4.i and 4.ii above less favourable treatment? The claimant has not identified an actual comparator but relies upon a hypothetical comparator, namely a partner aged under 60. 6. If so, was it because of age? 7. Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were: i. Protecting the interests of the business; and ii. Ensuring inter-generational fairness. 8. The question of proportionality involves considering: i. Was the treatment an appropriate and reasonably necessary way to achieve those aims; ii. Could something less discriminatory have been done instead; and iii. How should the needs of the claimant and the respondent be balanced? Findings of fact 8. The following findings of fact are made on a unanimous basis. Background 9. The respondent is a firm of solicitors based in Leeds. It is a limited liability partnership which is governed by a Members’ Agreement and byelaws. The respondent currently employs approximately 500 people and has approximately 57 partners. 10. The claimant was admitted as a solicitor in 1985 and became a partner in the respondent on 1 May 1992. On 1 May 1997 he became an equity partner, and on 1 May 2003 he became a full equity partner with the maximum number of profit points. He remained working as an equity partner for the respondent until 30 April 2023 when he retired. 11. In 1990 the claimant formed the respondent’s Construction Department, which later became known as the Construction and Engineering Department. He worked in that department until his retirement. The respondent’s retirement policy pre 2018 12. Prior to 2018 the respondent’s retirement policy for partners was set out in clause 21 of the Members’ Agreement dated 1 May 2014 as follows: “21.1 Any Member may retire from the LLP on giving (subject to clause 23.2) not less than six months’ notice in writing to the Chairman at the principal place of business of the LLP and such Member shall retire on the expiry of the notice. 21.2 Each Member shall retire on the Accounting Date next following his or her sixtieth birthday unless he or she is requested by the Members and agrees to remain as a Member for such further period as may be agreed by the Members”. 13. The 2014 Members’ Agreement also contained, at paragraph 22, compulsory retirement provisions which gave the respondent the right to give six months’ notice to a partner requiring them to retire from the partnership. Such notice could be given at any time and for any reason, although there was no need for a reason to be given. A vote of 75% of the partners was required before notice could be given under this provision. This right to forcibly retire partners on six months’ notice was in practice not used by the respondent. 14. Since approximately 1987 the respondent has operated a retirement age of 60 for partners. The retirement provisions set out in the 2014 Members’ Agreement reflected this and were described as a ‘cliff edge’ whereby partners retired at 60 unless they were asked to stay on as consultants. 15. The 2014 retirement provisions did not set out any procedure to be followed if a partner wanted to work beyond age 60. Nor did it specify any criteria that had to be met in order for them to do so, other than a request from the other partners. In practice, only two partners remained as partners beyond age 60. The first was in 1987 when it was agreed that a partner by the name of Martin Kempley could remain as a partner until his 63rd birthday if he wished to do so. The second occasion was more recently and involved a partner by the name of Andrew Beck. The respondent had a pressing need for him to remain as a partner because of one particular client of the firm. He remained as a partner for one year after turning 60, and then moved to a consultancy arrangement. 16. Other partners did on occasion remain working for the firm after age 60, but on a consultancy basis rather than as partners. Development of a new retirement policy 17. On 4 December 2007 the Employment Tribunal handed down its judgment in the case of Seldon v Clarkson Wright & Jakes, a claim involving the compulsory retirement at age 65 of a partner in a law firm. This case raised the issue of retirement in partnerships in the mind of Mr Smedley who was, at the time, the head of the respondent’s employment law department. 18. The history of the Seldon litigation can be summarised as follows: 1. Decision of the Employment Tribunal : 4 December 2007 2. Judgment of the Employment Appeal Tribunal : 19 December 2008 3. Judgment of the Court of Appeal : 28 July 2020 4. Judgment of the Supreme Court : 25 April 2012 5. Second judgment of the Employment Tribunal following remittal from the Supreme Court : 14 May 2013 6. Second judgment of the Employment Appeal Tribunal : 13 May 2014 19. In 2008 David Smedley gave a formal presentation to the partners’ conference, following the decision of the Employment Tribunal in Seldon. Mr Smedley was concerned that the firm had not reviewed its retirement age for many years, and that, in light of the Seldon case, the firm’s retirement age was potentially vulnerable to challenge. Mr Smedley wanted to provoke a debate and review of the retirement policy, but the partners in 2008 were not interested in doing so. At the time of that presentation the Seldon litigation was at an early stage. 20. In 2010 Mr Smedley submitted a paper to the respondent’s Board, which was considered at a Board meeting in October 2010. That paper, and indeed all of the written advice provided by Mr Smedley on the question of retirement, was not before us in evidence, other than short extracts referred to in other documents. 21. At the October 2010 Board meeting, the Board concluded that: 1. The existing partnership agreement provided for a compulsory retirement age of 60; 2. If a partner wanted to continue as a partner after age 60, he or she could put a proposal to the partners and continue if 85% of the partners agreed; 3. The statutory retirement age of 65 for employees did not apply to partners, and had in any event now been removed; and 4. The only case law at the time was Seldon in which a partnership that wanted to keep 65 as their compulsory retirement age won, although there was no guarantee of a similar outcome were the respondent’s compulsory retirement age to be challenged 22. The chairman of the Board, Andrew Turnbull, carried out an informal survey of the 49 partners in the firm and spoke to about 35 of them. He received email comments from a further nine partners and reported back to the Board that the vast majority of partners wanted to retain a compulsory retirement age of 60. 23. In the autumn of 2015 two of the partners, Andrew Beck and Austin Judson produced a power point presentation on the subject of retirement, succession and restrictive covenants. This was a detailed review of the position following the Seldon litigation, which by that time had concluded, and considered the respondent’s position in light of an ageing partnership. 24. The presentation quoted from an advice note that David Smedley had provided to the partners on 19 March 2013 (which was not before us in evidence) as follows: “I do not think that a compulsory retirement age of 60 is sustainable for the reasons set out above. All the external drivers are against us in this regard and I think if we maintain age 60 we will be vulnerable to claims which we will find difficult to defend. The purest advice could be to abolish the retirement age completely and move to a pure performance model. This is the safest, “legal” position to adopt. If the defence in Clarkson, Wright and Jakes ultimately proves successful [which it did] then a compulsory retirement age of 65 should be capable of objective justification…. While it might be challenging to decide on a specific retirement age for a given business, it is helpful to note that the precise age is not completely critical. It was remarked throughout the case that a retirement age needs to be decided on the basis of the needs of the particular organisation. If, for example, the firm had no trouble retaining associates regardless of partners being retired or not, this may well have undermined the legitimate aim of workforce retention.” 25. The presentation indicated that, without further recruitment and assuming that it retained its existing retirement age, the respondent would have just 28 partners in 10 years’ time. It also reviewed the approach to retirement in the US and in other firms in the UK, noting for example, that Allen and Overy, Linklaters and Slaughter & May did not have compulsory retirement ages, but also that some other firms retained retirement ages. 26. It concluded that compulsory retirement at 60 was probably unlawful, that there would be significant retirements in the next 3 to 7 years (given the age profile of the partnership at the time) and that important issues for consideration included the need to nurture talent, to allow for progression, and succession planning. It suggested four options: 1. Retaining retirement at 60; 2. Moving retirement to 65; 3. Scrapping the retirement age altogether; and 4. Requiring partners to hand over equity and influence but retain the partner tag. 27. The Beck and Judson presentation did not gain much support or interest in 2015 and was presented again to the partners’ conference in November 2016. There was very limited debate about the presentation on that occasion. On 10 October 2017 David Smedley, in an email to another partner, wrote, referring to the Beck and Judson presentation, “The response was a staggering level of disinterest, notwithstanding the clear message conveyed.” He also referred to the partner retirement issue as being a “massive issue for us”. 28. In August 2016 the claimant produced a paper on the respondent’s retirement age for partners. He sent a draft to David Smedley on 22 August for comment, and then sent a revised version on 30 August. The claimant wrote that his purpose in submitting the paper was to extend the firm’s retirement age from 60 to 65. He reviewed the firm’s current practice of using consultancy agreements if it wanted partners to work beyond sixty and commented that these “are not regarded by many as having been particularly successful.” 29. He also wrote that: “Whilst a low compulsory retirement age will undoubtedly lead to the loss of some high billing and highly motivated Partners making a significant contribution, it equally in the past has successfully ensured the departure of some long term underperforming Senior Partners, automatically and without the need to put those Partners under any sort of real review in the run up to their retirement….Indeed fundamental to this paper is my argument that it is that very lack of objective review which has now saddled contributing Partners who would like to continue working with an unrealistically low retirement date which is highly prejudicial to the Firm in the current economic climate. Assuming a Partner is prepared to work hard and has a track record of delivering good results for the Firm it is difficult to understand, subject to some objective oversight of that Partners performance, that there should be any reason why that Partner should be compelled to leave as a Partner simply because they attain the age of 60…. It is submitted that to achieve the increased profitability which all Partners want will not be possible if the one size fits all policy towards retirement is continued when that will inevitably result in the departure of some capable and talented Partners. Equally it is not being suggested that by extending the age by which Partners are to retire we are to be seen to be giving those Partners a free ride but rather the opportunity along with everyone else to justify their position year on year… Given the above it becomes obvious that central to the justification of the retirement age being extended must be the need to ensure that the REMCO process is objective, fair and transparent…there may need to be some discussion as to whether the powers of REMCO should be increased” 30. The claimant’s paper was detailed, thorough and well thought out. It referred to the Seldon litigation and identified that retaining the current retirement age put the respondent at risk of breaching the Equality Act. The claimant also commented that “at 60 we appear to be well outside of the current norm and we as a Firm would be bonkers to retain it”. The claimant commented on the firm’s more recent emphasis on partner performance that “Because of the general acceptance by the Partners that performance now has to be reviewed regularly if Walker Morris is to remain a premier law firm, the age of retirement should become irrelevant. Remuneration of all Partners will depend upon his/her contribution to the firm and not his/her age”and “Given the move towards a more objective standard of assessment of contribution through REMCO there is less chance of allowing any Partner, irrespective of their age, to “cruise”, as has arguably happened in the past”. 31. He suggested a number of solutions including extending the retirement age to 65, allowing partners to work to 65 and incentivising early retirement, and what he described as ‘moderated late retirement’, with partners losing 10% of their equity each year they remained a partner after 60. 32. The claimant sent his paper to Mr Smedley on 30 August 2016. Mr Smedley replied the following day that he would discuss the issue with the then Managing Partner and progress the matter. 33. The claimant also sent his paper to all of the partners but it was never discussed by them in a partners’ meeting. Mr Simpson, who became Managing Partner in 2018, and Mr Counsell could not recall having seen the paper at all prior to these proceedings. Mr Smedley’s evidence was that it had been debated in the respondent’s Constitution Committee, but there was no documentary evidence to support this assertion and Mr Counsell’s evidence to the Tribunal was that he had not seen it previously. He was chair of the Constitution Committee at the time. Given that neither Mr Simpson nor Mr Counsell could recall even seeing the claimant’s paper, we find on balance that it was debated in the Constitution Committee. 34. It is clear that the claimant’s paper was not given much, if any, consideration at senior level, despite the fact that the claimant had raised concerns in the paper that the respondent was vulnerable to a legal challenge if it maintained the current retirement policy and set out alternatives to a compulsory retirement age of 60. 35. The respondent operates a remuneration committee known as REMCO, whose remit involves reviewing the remuneration of partners. Equity partners within the respondent’s business are remunerated on the basis of ‘profit points’. Each partner is allocated a number of points, subject to a maximum of 100. Typically it takes between 8 and 10 years for an equity partner to reach the top of the equity, i.e. 100 points. 36. An equity partner’s remuneration depends upon the profits of the firm in any year and the number of points that they are allocated. Each point is allocated a financial value once the firm’s profits have been calculated. REMCO has the power to recommend that additional points are granted to an equity partner, and that points are taken away. Until relatively recently however it was rare for REMCO to recommend the removal of points. 37. In 2016 the claimant and Malcolm Simpson were elected to REMCO. About that time REMCO began to change and to take on a more active role in assessing partners’ performance. Every year each partner is required to submit a paper to REMCO summarising their performance over the year. This is reviewed by REMCO and compared with the performance of other partners. REMCO then makes a recommendation, based upon its view of the partner’s performance, as to whether the partner should have profit points deducted, added or they should remain the same. The annual performance review by REMCO was described in evidence as being a robust one. Mr Simpson referred to is as ‘being put through our paces’. 38. Prior to 2017, REMCO rarely recommended removing points from a partner, although the claimant had 15 points removed for a period of 3 years ending in 2016. There was the start of a cultural change in 2017 when REMCO became more assertive in managing partners’ performance and in recommending the removal of points if partners were considered not to be performing. REMCO recommendations are put to a vote of the full equity partners. 39. During 2017 the issue of partner retirement came more to the fore. On 13 February 2017 David Smedley circulated a Retirement Note to all partners on behalf of the respondent’s Board. The note recognised that there had been some debate on the issue of retirement and that there appeared to be little appetite to remove the retirement age of 60, albeit a wish to review the issue and consider alternatives. It referred to a recent report by REMCO “and its stated intent to be more forthright in addressing underperformance” and that the majority of partners felt there should be no change to the retirement age whilst the new REMCO approach was given time to bed down. 40. The Retirement Note referred to the setting up of a working party to consider the issue of retirement and stated that: “Until any reform is implemented, any member who wishes to stay on after his/her 60th birthday should be encouraged to present a business case to the members supporting his/her wish to remain as a member. This approach would give every member who would otherwise retire the opportunity of remaining as a member if his business case was viewed by the members as strong enough.” 41. The claimant wrote to Mr Smedley on 14th February expressing his disappointment at the content of the note. Mr Smedley replied and suggested that the claimant put in a paper seeking an extension of his partnership beyond age 60 once the respondent had reduced the threshold for approval of an extension beyond 60 from 85% to 75%. In November 2017 the partnership voted to reduce the relevant percentage required to approve a partner remaining as a partner beyond aged 60 from 85% to 75%. 42. In October 2017 the respondent’s Constitution Committee, chaired by Stuart Counsell, who was a non-executive member of the Board and not a partner in the firm, decided to set up two sub groups, one to look at the question of retirement, and one to look at performance management. 43. On 13 December an email was sent on behalf of Mr Counsell to members of the retirement sub group, setting out eleven factors to be considered by the group when discussing the retirement policy: 1. A non-compulsory target / default retirement date to assist both individual and partnership planning and avoid ‘cliff edge’ situations; 2. Structured partner succession/ resource planning; 3. Partner retention; 4. Avoiding talent loss by retaining the highest performing partners beyond retirement age; 5. The need to create space and refresh the partner group; 6. Ensuring a fair allocation of equity and influence between different generations; 7. The need to deal with under performance; 8. The need for restrictive covenants; 9. Annuities; 10. Being equitable and transparent; and 11. The need for any proposals to be legally compliant, defensible and achievable within the existing partnership structure. 44. The first meeting of the retirement sub group took place on 15 December 2017. The draft minutes of that meeting record that the matters discussed included an ideal compulsory retirement age and that that there was a difference of opinion as to what that should be, within the range from 60 to 63. There is little evidence in the minutes of any detailed discussion about removing a mandatory retirement age entirely, or of a retirement age higher than 63, although the minutes do comment that: “Adopting a later compulsory retirement age rather than addressing high performing partner retention through equity retention beyond a presumed date or there being appropriate consulting arrangements could result in a rise in the average age of equity partners and a lack of space for new partners. Similarly, there is a risk that whatever later compulsory age may be adopted will itself come under pressure in the future.” 45. On 12 January 2018 the draft minutes of the meeting were circulated in an email sent on behalf of Mr Counsell. In the email Mr Counsell commented that it had been agreed that any retirement age selected would need to be justified through a proper process, and that a range of 60 to 63 had been discussed He set out a number of advantages and disadvantages of having a compulsory retirement age of between 60 and 63 and of having a non-compulsory retirement age. 46. A second email was sent on behalf of Mr Counsell on 12 January to various partners including Mr Simpson and Mr Smedley. In that email Mr Counsell referred to a meeting which had been arranged for 19 January and commented that: “The retirement sub group met in December where there was a good discussion covering many aspects of what is a complex area. It is hoped that another meeting will generate a preferred position for consideration by the full CC.” He also wrote that “I feel that we are now at the stage where we need to move into execution mode and finalise proposals for consideration by the wider partner group.” 47. Mr Counsell arranged a meeting of the full Constitution Committee for 19 January 2018 to discuss the issue of retirement. There were no minutes of that meeting before us, nor indeed of any further meetings of the retirement sub group. Although the respondent’s witnesses referred to ‘several’ meetings of the retirement sub group, we find on the evidence before us that the retirement sub group met on 15 December 2017 and, as part of the full Constitution Committee, on 19 January 2018 only. 48. On 31 January an email was sent on behalf of Mr Counsell setting out the recommendations of the retirement sub group for discussion at a full Constitution Committee meeting on 7 February 2018. Those recommendations included two options: compulsory retirement aged 60-63 or what it described as ‘presumed’ retirement at 60 with the possibility of an extension to 63. It attached a draft retirement policy which included a number of suggestions including career conversations aged 55 and a ‘presumed’ retirement age of 60 with the possibility of applying for an extension to 63 if the partner concerned was considered to be a technical specialist, or of above average or exceptional performance. 49. The notes to the policy make clear that “The extension will not be the norm and a high threshold will be set with partners expected to be high value contributors with strong technical and business winning skills.” They also recommend that extended equity partnership beyond age 60 should be subject to restrictive covenants and six months’ notice. Partners who are below the age of 60 are not subject to any restrictive covenants. 50. The draft retirement policy was subsequently amended and a revised version was circulated on 9 February 2018. The revised version indicated that extension of equity partnership beyond 60 would only be available to those who were considered to be exceptional performers. 51. On 8 June 2018 Mr Counsell sent a copy of a draft retirement policy to Mr Simpson for review. Mr Simpson took over as Managing Partner of the firm on 1 May 2018 and had made it clear that resolving the question of partner retirement was one of his priorities. Mr Counsell explained to Mr Simpson that there was agreement within the Constitutional Committee on a number of issues, that one of the difficult issues had been at what age partners should retire, with a range of 60-63 having been discussed, and that the proposal of the committee was that there should be a ‘presumed’ retirement date of 60 with the possibility of an extension to 63 subject to restrictive covenants and six months’ notice. 52. Mr Counsell also commented that: “the hurdle to achieving partnership extension to age 63 should be a high one to preclude the risk of an increasing age profile that impairs the firm’s ability to create space and refresh the partner group.” 53. On 5 September 2018 David Smedley circulated a draft revised retirement policy to the partners of the firm for discussion at a partners’ meeting on 20 September. The policy took the form of amended retirement provisions to be inserted into the members’ agreement. Mr Smedley commented in his covering email that “The objective behind the proposals is to protect the interests of the business and the interests of the individual (which will often be the same!) to ensure inter-generational fairness by adopting a pragmatic and balanced approach”. At the end of the email Mr Smedley invited any partner who had any questions about the draft documentation to contact him or Malcolm Simpson. 54. The claimant did not contact either Mr Simpson or Mr Smedley about the draft, nor did he raise any concerns about it. 55. The draft retirement policy was discussed at a partners’ meeting on 20 September and there was broad support for the changes proposed amongst the partner group. After the partners’ meeting, one of the senior partners within the firm, Richard Sagar raised some concerns about the draft policy and Mr Smedley met with him to discuss those concerns. Mr Sagar raised four issues: 1. That there should be the right for a partner to refer any refusal of the Board to agree an extension to the wider partner group; 2. If the Board or partners put a counter proposal to a partner who had applied for an extension beyond age 60, there should be a cooling off period for the partner to consider the counterproposal; 3. The requirement for ‘exceptional performance’ to get an extension was unrealistic and an unreasonably high bar; and 4. The restrictive covenant should apply following retirement from the firm, however it arose. 56. On 9 October 2018 David Smedley sent an email to Mr Simpson updating him on his meeting with Mr Sagar. In his email he commented that he had incorporated the first two points raised by Mr Sagar into revised drafting, and, in relation to the last two points: “I suspect that we are where we are with both of these two additional points. I am inclined to agree with all the points however, but pragmatism means that we will probably have to accept the high bar and at the end of the day much will depend upon the context of the application and the terms but it will give Partners a copper bottomed excuse for bouncing Partners who they do not wish to retain even where retention is probably in the interests of the Partnership! Whichever way you approach this it is fraught with difficulties””. 57. This email reflects the evidence given by the respondent to the Tribunal, namely that there was a strong desire on the part of the respondent to reach consensus on a new retirement policy. This seemed to be a priority in particular for Mr Simpson, even more so than avoiding legal risk. 58. On 20 November 2018 David Smedley circulated a revised version of the members agreement incorporating the new retirement policy to the partners in advance of a partners’ meeting in Lisbon on 30 November. He again invited any comments from partners either to himself or to Malcolm Simpson 59. On 30 November 2018 the revised retirement policy was put to the vote at a partners’ conference. There was no debate about the policy at the conference, as the issue of retirement had been allocated just a 15 minute slot on the agenda. There was a vote by show of hands and 43 out of the 45 partners present voted in favour, including the claimant. One partner abstained and one voted against the new policy. David Smedley, as chairman of the partnership, recorded the results of the vote on the attendance list. 60. Following the vote at Lisbon, a revised Members’ Agreement was put into place on 14 December 2018. This included the following provisions: “21 RETIREMENT 21.1 Any Member may retire from the LLP on giving (subject to clause 23.2) not less than six months’ notice in writing to the chairman at the principal place of business of the LLP and such Member shall retire on the expiry of the notice. 21.2 Subject to clauses 21.3 and 21.4, each member shall retire on the Accounting Date next following his or her sixtieth birthday. 21.3 A Member may, by following the procedure set out in paragraph 10 of the Bye-laws, apply (on the terms set out in the Member’s application for such purpose) for a postponement of his or her Retirement Date….Subject to the right of a Member to refer an application to Members…., any such application shall be subject to approval by (and in this order): 21.3.1 first, a resolution of the Board; and 21.3.2 second, a resolution of Full Share Members (in the case of an application under this clause from a Profit Sharing Member) or the Profit sharing Members (in the case of an application under this clause from a Fully Fixed Share Member or a Partially Fixed Share Member)….;and 21.3.1 third, a resolution of the Members passed in accordance with this deed. 21.3.4 Where the Board does not resolve to approve an application….and does not put an alternative proposal to the Member….the Member may refer the application he/she made directly to the Members…. Any Member for whom an Extended Membership Period is approved in accordance with this clause shall….retire on the Accounting Date next following his or her sixty-third birday….as being his or her intended end date for the proposed Extended Membership Period…. 21.4 Any Member for whom an Extended Membership Period is approved in accordance with clause 21.3 may, by following the procedure set out in paragraph 10 of the Bye-laws, apply for a further postponement of his or her Retirement Date beyond the date that he or she would otherwise have retired pursuant to that clause. Any such application shall be subject to the approvals described in sub-clauses 21.3.1 to 21.3.3. Any Member for whom an Extended Membership Period has been approved in accordance with this clause 21.4 shall….retire on the Accounting Date next following his or her sixty-fifth birthday…. 21.5 It is acknowledged and agreed by the Members that any application made by a Member pursuant to clause 21.3 or clause 21.4 should only be approved: 21.5.1 where such Member’s contribution (judged in its broadest sense) to the LLP is considered to have been prior to his or her application, and is anticipated to continue to be up until the end of his or her Extended Membership Period (if approved) of an exceptional nature; and 21.5.2 where such Member has agreed to a programme for the passing of the goodwill attaching to his or her practice as a solicitor within the LLP to another Member over his or her Extended Membership Period together with any other appropriate terms and/or conditions, the implementation of such programme to be supervised by a Member nominated by the Board and compliance with such terms and/or conditions; and 21.5.3 in relation to an application made under clause 21.4, where that programme has been implemented and any other terms and/or conditions complied with (during his or her Extended Membership Period to date). 21.6 Any Member who applies for an Extended Membership Period under clause 21.3 (and, if applicable, clause 21.4) shall be subject to the restrictive covenant set out in schedule 4 for the period provided for in that schedule…. 22 COMPULSORY RETIREMENT 22.1 The Members may….resolve that a Member shall retire from the LLP and shall cease to be a Member from the date specified in such resolution (such specified date being not less than six months from the date on which the resolution is passed) and the Member shall cease to be a Member on such date. 22.2 In the case of a resolution under clause 22.1, no reason needs to be given for such resolution….” 61. The respondent also amended its bye laws to include the following provision: “10 PRE-RETIRMENT REVIEWS OF MEMBERS 10.1 Each Member shall, in the three months after the Accounting Date next following his or her fifty-fifth birthday meet with the Managing Partner who shall consult with the Member’s head of department (unless the Member concerned is himself or herself a head of department) for the purpose of discussing the Member’s intentions (so far as by then formulated) as regards the remaining period before the Member’s intended retirement date and whether the Member may wish to make an application for an Extended Membership Period pursuant to clause 21.3 of the LLP Agreement. A further such meeting shall be held in the three months after the Accounting Date next following the Member’s fifty-seventh birthday. 10.2 Following the second meeting referred to in paragraph 10.1, a member may make an application for an Extended membership Period…. Any such application shall….state the Member’s intended retirement date….and whether he or she wishes to work full-time or part-time during the requested Extended Membership period…. 10.4 Where a member has remained a Member following the Accounting Date next following his or her sixtieth birthday after having made an application pursuant to paragraph 10.2 and such application having been approved in accordance with clause 21.3 of the LLP Agreement, such Member shall, in the three months after the Accounting Date next following his or her sixty-second birthday meet with the Managing Partner….for the purpose of discussing whether the Member may wish to make an application for a further Extended Membership Period pursuant to clause 21.4 of the LLP Agreement….” Application of the retirement policy to the claimant 62. The claimant was born on 13 August 1959. He reached age 60 on 13 August 2019 and, under the revised retirement policy, would have been presumed to retire on 30 April 2020. 63. In January 2019, following the adoption of the new retirement policy which incorporated the concept of pre-retirement career conversations, Mr Simpson wrote to the claimant suggesting a meeting to discuss his intentions in relation to retirement. There was no evidence before us as to whether this meeting took place or if it did, what was discussed . 64. On 21 February the claimant sent his annual partner performance review form to David Smedley for his review and comment. In the form the claimant indicated that he wanted to apply to extend his retirement age from 60 to 65 so that he could work to 30 April 2025, which would have been the end of the financial year following his 65th birthday in August 2024. There was no evidence before us of any response to this email other than an email from Malcolm Simpson to the claimant on 11 August 2019 suggesting a coffee to discuss the claimant’s application. 65. There were some discussions between the claimant, Mr Smedley and Mr Simpson about the claimant wishing to stay on beyond aged 60 and on 24 October 2019 Mr Smedley sent an email to the claimant advising him that he needed to put in a paper in support of his application and reminding him that the bar that had been set for an extension, namely one of outstanding performance, was a high one. He suggested meeting up to discuss the claimant’s paper. 66. The claimant produced a draft application for an extension to 30 April 2025 which he sent to Mr Smedley for review. Mr Smedley made a number of comments on it, including reminding the claimant that he could only apply for a three year extension under the Members’ Agreement and not a five year extension. 67. On 13 November 2019 the claimant sent a final draft of his application to David Smedley. In this paper he explained that he wished to apply to extend his time as a partner to 30 April 2023 subject to: 1. An option to extend for a further period of two years with the agreement of the partners; and 2. A reduction of 10% per year in his share of the equity, unless his financial performance was substantially above average, and subject to review by REMCO. 68. The claimant recognised in the paper that the bar to securing an extension to the retirement age is a high one and set out why he believed he met the bar. 69. On 13 January 2020 Mr Smedley wrote to the claimant informing him that his paper had the full support of the Board and the equity partners, subject only to minor changes which he would discuss with the claimant. He wrote to the claimant again on 20 January informing him that the Board and partner approval were subject to only 2 minor changes to the paper. The amendments were made to the application, and it was circulated to the partners by Mr Smedley on 21 January 2020. 70. The claimant was granted a three year extension to his partnership and remained working as a partner in the respondent’s construction team until 30 April 2023. Between May 2020 and April 2023 he gradually handed over his work and client contacts to the other partners in the team. His equity was reduced by 10% each year such that by the time he retired on 30 April 2023 he had 70 profit points. 71. The claimant’s performance continued to be reviewed each year by REMCO in accordance with the normal policy. Each year REMCO published a summary of the approach that it would be taking to the review of partner performance, in advance of the individual reviews actually taking place. 72. In 2021 REMCO’s feedback to the claimant included the following: 1. The claimant and his team had delivered a strong financial performance in 2020 but the claimant’s strong financial performance was significantly undermined by his persistent poor conduct and poor partner behaviour; 2. The claimant’s behaviours as a partner were disruptive, uncollaborative and corrosive and included expressing damaging views about partners in other departments and creating a ‘them and us’ culture between the construction department and the rest of the firm; 3. The claimant was deliberately seeking to act in a manner calculated and likely to undermine decisions taken in the best interests of the partnership as a whole; 4. The claimant’s broader contribution was completely lacking; and 5. The claimant needed to continue to work on the succession plan to hand over his work and contacts to colleagues; 73. The claimant was told during the feedback meeting that the objective was to ensure that the business could function without him when his 3 year extension came to an end in 2023. 74. The claimant did not accept the feedback given by REMCO and responded angrily and aggressively. He was very critical of other partners including Mr Smedley and Mr Simpson who he referred to as ‘control freaks’. The claimant also threatened to sue the respondent for what he saw as a breach of an agreement in relation to his equity share. 75. The record of the meeting concludes by noting that “during the course of the second part of the meeting in particular Martin displayed all the traits which had led RemCo to conclude that his behaviour was unacceptable, namely threats, aggressive behaviour and unproved and ill-judged personal attacks on individual partners”. 76. The respondent’s view was that partner performance should be assessed by reference to a number of different elements, of which financial performance was just one. The claimant did not accept this. His view was that performance should be assessed by reference to financial performance, and he described other factors as ‘guff’. It was clear to the Tribunal that the claimant had, at least from 2021 onwards, little respect for the management of the firm including the Managing Partner and the Chairman, and that he was a disruptive force. He would on occasion send emails to Mr Simpson which were critical of him and copy in the rest of the partner group to the emails. He also behaved inappropriately towards other staff. 77. In 2021 Mr Simpson introduced a Colleague Dignity and Respect policy which applied to both partners and employees. The claimant breached that policy on two occasions and was the only partner to do so. On 23 November 2022 Mr Simpson wrote to the claimant under the heading Colleague Dignity and Respect Policy. In the letter he referred to emails sent by the claimant to the partner group on 18 and 19 November 2022 in which the claimant had: 1. alleged that Mr Simpson and Mr Smedley had contrived to give one of his team no pay rise; 2. complained that the decision not to award a pay rise was ‘spiteful’ and ‘discriminatory’; and 3. alleged that the respondent’s newly qualified solicitors were ‘largely useless’ 78. Mr Simpson also commented in the letter that: “I also have very real concerns regarding a comment made in your 19 November email, in which you appeared to suggest that the Policy does not apply to you because you are a partner not an employee. This is, of course, incorrect; this important policy applies to everyone at Walker Morris, including partners…. This is the second time this year that we have had to raise concerns about your abusive and unacceptable behaviour to colleagues….” 79. Mr Simpson asked the claimant to apologise for his behaviour, and the claimant did apologise. 80. In 2022 REMCO’s feedback was that: 1. The claimant was not dealing with succession and was continuing to lead on all but one case; and 2. His broader contribution was extremely limited; 81. The notes of the feedback meeting record that the claimant responded combatively to this feedback, although he acknowledged that he had had a quieter year and had not done enough to earn additional profit points. 82. On 7 January 2023 the claimant sent an application to extend his partnership by a further two years to the partners of the respondent. In the application he set out why he considered that his performance had been and continued to be exceptional. He stated that he had now handed over most of his cases and that, going forward he wished to focus on contingent cases which he anticipated would generate fees of between £1.5m and £2m over a two year period. He suggested that this work could be done through the Commercial Disputes Resolution department if not through Construction and Engineering. He did not however consult the Commercial Disputes Resolution team before making this suggestion. 83. The application focussed entirely on work and financial metrics and made no mention of any wider contribution to the partnership which was consistent with the claimant’s view that financial performance was key to assessing partners’ contribution to the firm. 84. The application was considered by the respondent’s Board at a meeting on 20 January 2023. Before that meeting Mr Simpson discussed the claimant’s application with the partners in the Construction and Engineering and the Commercial Disputes Resolution departments. None of those partners supported a second extension for the claimant. They also indicated that the claimant had delivered on the succession plan that had been put in place. 85. Mr Simpson suggested to the Board that there were a number of factors that should be considered when deciding whether to grant the claimant’s application for a further extension, namely: 1. The claimant had delivered on the three year succession plan; 2. His latest application for an extension related to a new practice comprising mainly one-off contingent or third party funded claims from which there would be little ongoing work; 3. The proposed portfolio of new cases was largely unknown and untested and most had not been considered by the firm’s Risk Committee; 4. The other partners in Construction and Engineering and in Commercial Disputes Resolution had little appetite for taking on such claims; 5. The cases were unlikely to generate any profit if the claimant were to remain at the same level of equity; and 6. The claimant had demonstrated behavioural issues and general disruption. 86. The Board decided not to support the claimant’s application for a further extension. Mr Simpson was asked to communicate this decision to the claimant. Mr Simpson delayed almost two months in informing the claimant and did not do so until 14 March 2023. He provided no explanation for this delay. 87. On 14 March 2022 Mr Simpson sent an email to the claimant informing him of the Board’s decision not to approve the application for an extension. The reasons he gave for the refusal were that: 1. The handover of goodwill had gone to plan and been completed; 2. The claimant’s application was based almost entirely on a new caseload which had not yet been considered for funding approval by the respondent’s Risk Committee, as a result of which there was little information about the merits of the claims; 3. Investing in contingent cases was not a strategic priority for the respondent; 4. A decision to extend the claimant’s partnership on the basis of the claims he had referred to would be an investment in the claimant personally rather than in the firm as a whole; and 5. The fees generated from the cases were such that the work could be loss making and, in any event, far from being an exceptional contribution. 88. Mr Simpson asked the claimant if he wished to appeal the Board’s decision to the wider partner group, and the claimant did so. He was invited to address a partner meeting on 6 April 2023. 89. In preparation for the partners meeting Mr Simpson sent an email to the partners setting out the Board’s reasons for not supporting the claimant’s application for an extension. 90. A partners’ meeting took place on 6 April at which the claimant spoke in support of his application for a second extension of his partnership. No formal minutes were taken of the meeting, in accordance with the respondent’s normal practice, but Simon Clarke, the respondent’s general counsel, made some handwritten notes which were before us in evidence. After the discussion about the claimant’s application there was a vote on the question of whether to approve it. Only one partner voted in favour. The rest voted against. 91. After the meeting Mr Simpson telephoned the claimant and told him of the decision. As the application for a second extension was not approved, the claimant retired from the partnership on 30 April 2023, aged 63. 92. Since the respondent’s new retirement policy came into force in December 2018, four partners have applied for extensions, including the claimant. The only partner to have applied for a second extension, aged 63, was the claimant. There have been no successful applications for second extensions. 93. The evidence before the Tribunal was that three of the applications for an extension beyond age 60 had been successful, and one was still being considered. One of the other applicants, Jeremy Moore, was considered to be a rain maker. He was granted one extension of four years, on condition that he would not apply for a further extension. The extension granted took him to within two weeks of his 65th birthday. 94. Mr Smedley was asked, when giving his evidence, whether the respondent had considered less discriminatory alternatives to a compulsory retirement age. He replied that it had not. There was very little, if any, evidence before the Tribunal of the respondent giving serious consideration to alternatives to retaining a ‘default’ retirement age of 60. The alternatives suggested by Mr Judson and Mr Beck in their presentation, and those suggested by the claimant in his 2016 presentation, do not appear to have been given serious consideration. 95. The respondent did not obtain any external legal advice in relation to the retirement policy, nor did it ask Mr Smedley to advise on the legality and legal risks associated with the new policy. Mr Smedley voted in favour of the new policy in 2018 and accepted that he would have been personally conflicted and as a result could not have provided independent advice on it, as he was approaching age 60 himself at the time the new policy was being discussed. 96. Although the claimant and the majority of other partners voted in favour of the new retirement policy, the claimant was not the only senior partner who was unhappy with the policy. Three other senior partners expressed their concerns about it and threatened litigation against the respondent. None of the others issued proceedings. 97. It was clear from the evidence before us (and in particular the evidence of Mr Simpson) that one of the respondent’s priorities when developing and implementing a new retirement policy for the firm was achieving consensus, and finding a policy that the partners would vote for. 98. In support of its defence of this claim the respondent argued that its retirement policy is a proportionate means of achieving a legitimate aim. There was however no evidence before us to suggest that older partners were ‘blocking’ younger members of staff from progressing. On the contrary, there was evidence to suggest that a mandatory retirement age could result in a reduction in the number of partners in the firm. There was also evidence to suggest that the respondent was making lateral hires and recruiting partners from other firms. 99. The respondent carried out exit interviews with employees who leave its business. Despite this, there was no evidence before us to suggest that younger members of staff were leaving the respondent because they considered they had limited prospects of getting promoted to partner or, once they were promoted, of working their way up through the equity. Mr Smedley was asked whether anyone had left because of problems getting into the equity and said that he couldn’t think of anyone. 100. The respondent’s witnesses suggested that using performance management to deal with underperformance at senior partner level would not be in keeping with the firm’s collegiate culture. Mr Smedley accepted in his evidence however that the firm has a performance management policy which it applies to employees below the rank of partner. The evidence also indicated that REMCO was taking a firmer approach to managing performance of partners and was not afraid to deliver difficult messages to partners perceived to be underperforming. 101. There was no evidence before us to suggest any compulsory retirement age being applied to the respondent’s employees or consultants. 102. Mr Crayton, who joined the respondent as a lateral hire, told the Tribunal that before he joined the respondent he considered that the respondent had a reputation for having ‘old partners hogging the equity’ but that by the time he joined, in November 2015, the position was improving. He also said that it had continued to improve since he had joined. 103. At the time of the claimant’s second application to extend his partnership, 25 of the respondent’s 57 partners were aged between 50 and 62, and 11 of them were aged between 55 and 62. 104. As of 1 May 2015 the respondent had 50 partners and 2,729.15 total equity points. As of 1 May 2016 the figures were 48 partners and 2,668.5 equity points. In May 2017 there were 51 partners and 2,602.5 equity points. In May 2018 there were 46 partners and 2,327.95 points. By May 2019 the figures were 47 partners and 2,396.3 points. May 2020 saw 46 partners and 2,330.8 points. In May 2021 the respondent had 52 partners and 2,529.75 points. As of 1 May 2022 (the last set of figures before the Tribunal) there were 57 partners and 2,486.93 points. 105. In its response to the claim, the respondent stated that the aims of its retirement policy were: “primarily to protect the interests of the business and the interests of the individual and to ensure inter-generational fairness by adopting a pragmatic and balanced approach which sought a balance between: (a) The need for a robust performance management approach so as to allow confidence that long serving partners would continue to perform at a high level; (b) The need for better partner resource/succession planning; (c) The desirability of retaining partners approaching the previous retirement age but who were meeting their obligations to the partnership and making a high financial contribution; (d) The need to free up equity to give progression opportunities to younger partners, in order or achieve fairness; (e) Helping to avoid conflict with underperforming partners approaching the retirement age; (f) Legal obligations under the Equality Act 2010; and (g) Balancing the aims and desires of younger and older partners to ensure inter-generational fairness.” The Law 106. Section 45(2) of the Equality Act 2010 provides that: “An LLP (A) must not discriminate against a member (B) – (a) as to the terms on which B is a member; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service; (c) by expelling B; (d) by subjecting B to any other detriment.” 107. Section 46(6) of the Equality Act 2010 states that the reference to ‘expelling B’ in section 45(2)(c) includes: “a reference to the termination of the person’s position as such – (a) by the expiry of a period (including a period expiring by reference to an event or circumstance)”. 108. Section 5 of the Equality Act 2010 defines the protected characteristic of age as follows: “(1) In relation to the protected characteristic of age – (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group; (b) a reference to persons who share a protected characteristic is a reference to persons of the same age group. (2) A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.” 109. Section 13 of the Equality Act 2010 (Direct discrimination): “(1) a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2) If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim.” 110. The question of whether the respondent has established a legitimate aim is a question of fact for the Tribunal. When seeking to justify direct age discrimination, the aim must correspond to a real business need, be of a public interest nature and pursue social policy objectives. 111. In Seldon v Clarkson Wright and Jakes (a partnership) [2012] IRLR 590 the Supreme Court commented that: “56. Two different kinds of legitimate objective have been identified by the Luxembourg court. The first kind may be summed up as intergenerational fairness. This is comparatively uncontroversial. It can mean a variety of things, depending on the particular circumstances of the employment concerned: for example, it can mean facilitating access to employment by young people; it can mean enabling older people to remain in the workforce; it can mean sharing limited opportunities to work in a particular procession fairly between the generations; it can mean promoting diversity and the interchange of ideas between younger and older workers. 57. The second kind may be summed up as ‘dignity’. This has variously been put as avoiding the need to dismiss older workers on the grounds of incapacity of underperformance, thus preserving their dignity and avoiding humiliation, and as avoiding the need for costly and divisive disputes about capacity or underperformance. Either way, it is much more controversial. As Age UK argue, the philosophy underlying all the anti-discrimination laws is the dignity of each individual, the right to be treated equally irrespective of either irrational prejudice or stereotypical assumptions which may be true of some but not of others…. 58. I confess to some sympathy with the position taken by Age UK. The fact that most women are less physically strong than most men does not justify refusing a job requiring strength to a woman candidate just because she is a woman. The fact that this particular woman is not strong enough for the job would justify refusing it to her…. But we know that the Luxembourg court has held that the avoidance of unseemly debates about capacity is capable of being a legitimate aim. The focus must therefore turn on whether this is a legitimate aim in the circumstances of this case. 59. The fact that a particular aim is capable of being a legitimate aim….is only the beginning of the story. It is still necessary to inquire whether it is in fact the aim being pursued. The ET, EAT and Court of Appeal considered on the basis of the case law concerning indirect discrimination…that the aim need not have been articulated or even realised at the time when the measure was first adopted. It can be an ex post facto rationalization. The EAT also said this[50]: ‘A tribunal is entitled to look with particular care at alleged aims which in fact were not, or may not have been in the rule-maker’s mind at all. But to treat as discriminatory, what might be a clearly justified rule on this basis would be unjust, would be perceived to be unjust, and would bring discrimination law into disrepute’ 112. When considering whether an employer has a legitimate aim for a measure the Tribunal must consider whether the aims of the measure are social policy objectives of a public interest nature as opposed to purely individual reasons particular to the respondent’s situation. This does not, however, prevent measures which are taken in the best interest of the employer from being directly related to legitimate social policy. (Seldon v Clarkson Wright and Jakes [2012] IRLR 50 and Air Products Plc v Cockram [2018] IRLR 755). 113. In Seldon the Supreme Court referred to two kinds of legitimate objectives – intergenerational fairness and dignity. 114. The objective being pursued by the respondent seeking to justify an age-related policy does not need to be articulated by the respondent, or even in its mind, at the time the policy is adopted. Ex post facto rationalisation is permitted. However, a Tribunal may look with particular care at alleged legitimate aims which may not have been in the policy maker’s mind. It is for the Tribunal to decide whether the policy is justified, not for those making the policy. 115. If the Tribunal is satisfied that the aims pursued by the respondent were legitimate, it is then for the respondent to satisfy the Tribunal on the balance of probabilities that the means used to achieve them were both appropriate to achieve the aim and reasonably necessary. This involves careful scrutiny of the steps taken to assess whether they do meet the identified aims, and whether there are any other, less discriminatory measures, which could meet those aims. 116. In Hardy & Hansons plc v Lax [2005] ICR 1565 the Court of Appeal held that, when considering (in the context of an indirect sex discrimination claim) whether a particular measure was justified, it was for the employer to show that the measure was justified, notwithstanding its discriminatory effect: “…The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary….” [para 32] 117. The Court of Appeal specifically rejected the suggestion that the correct approach was akin to a ‘range of reasonable responses’ test. The question of whether less discriminatory alternatives were available is central to that evaluation. The Tribunal must conduct a balancing exercise, weighing up the effect of the discrimination upon the claimant against the importance of the legitimate aim (Seldon) 118. The questions of legitimate aim and proportionality are two separate issues and should not be conflated. 119. In The National Union of Rail, Maritime and Transport Workers v Lloyd UKEAT/0281/18/JOJ (a direct age discrimination claim) the EAT held that evidence as to the effectiveness of the relevant measure is relevant: 1. For testing whether the legitimate aim relied on was a true aim; 2. For testing whether, in the particular circumstances, it was a legitimate aim; and 3. To the proportionality exercise [para 51 of the EAT Judgment]. 120. The EAT also held that the Tribunal had been correct to find that a policy which was contrary to Government policy on retirement age could not constitute a legitimate aim. 121. In Pitcher v Oxford University, a case involving an ‘employer justified retirement policy’ at age 67, the EAT held that it was possible for two different tribunals to reach different conclusions when considering the same retirement age, without either tribunal having made an error of law. The EAT also held that it was open to the Tribunal to conclude that the availability and granting of extensions to the retirement age did not sufficiently mitigate the discriminatory impact of the retirement age, and that even when extensions were granted the discriminatory impact of the retirement age remained severe, as beneficiaries of an extension were required to move onto fixed term contracts. Burden of proof 122. The relevant statutory provisions are set out in section 136 of the Equality Act 2010 as follows: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. …. (5) A reference to the court includes a reference to – (a) an employment tribunal….” 123. Section 136 creates, in discrimination cases, a two stage burden of proof (Igen Ltd (formerly Leeds Careers Guidance and others v Wong [ 2005] ICR 931and Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR1205)which is generally more favourable to claimants, in recognition of the fact that discrimination is often covert and rarely admitted to. 124. In the first stage, the claimant has to prove facts from which the Tribunal could decide that discrimination has taken place. If the claimant does this, then the second stage of the burden of proof comes into play and the respondent must prove, on the balance of probabilities, that there was a non-discriminatory reason for the treatment. 125. The Supreme Court has confirmed, in Royal Mail Group Ltd v Efobi [2021] ICR 1263,that a claimant is required to establish a prima facie case of discrimination in order to satisfy stage one of the burden of proof provisions in section 136 of the Equality Act. So, a claimant must prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the employment tribunal could infer an unlawful act of discrimination. 126. In Glasgow City Council v Zafar[1998] ICR 120, Lorde Browne-Wilkinson recognised that discriminators ‘ do not in general advertise their prejudices: indeed they may not even be aware of them’. 127. It is not sufficient for a claimant merely to say, ‘I was badly treated’ or ‘I was treated differently’. There must be some link to the protected characteristic or something from which a Tribunal could draw an inference. In Madarassy v Nomura International plc [2007] ICR 867Lord Justice Mummery commented that: “the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” 128. Unreasonable behaviour is not, in itself, evidence of discrimination (Bahl v The Law Society [2004] IRLR 799) although, in the absence of an alternative explanation, could support an inference of discrimination (Anya v University of Oxford & anor [2001] ICR 847). Submissions 129. Each party made detailed written and oral submissions for which the Tribunal is grateful. The principal submissions made on behalf of the parties are summarised below. The fact that a point made in submissions is not referred to below does not mean that it has not been considered. 130. We were referred by the parties to the following cases, which we have taken into consideration when reaching our conclusions: Hardy & Hansons plc v Lax [2005] ICR 1565 C-38807 R (Age Concern England) v Secretary of State for Business, Entreprise and Regulatory Reform [2009] 3 CMLR 4 R (Age UK) v Secretary of State for Business, Innovation and Skills [2010] 1 CMLR 21 Seldon v Clarkson Wright & James [2012] 2 CMLR 50 Seldon v Clarkson Wright & James (No.2) [2014] ICR 1275 National Union of Rail, Maritime and Transport Workers v Lloyd [2019] IRLR 897 Pitcher v Oxford University [2022] ICR 338 The National Union of Rail, Maritime and Transport Workers v Lloyd UKEAT/0281/18/JOJ Nagarajan v London Regional Transport [2000] 1 AC 501 Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601 Air Products Plc v Cockram [2018] IRLR 755 Kapenova v Department of Health [2014] ICR 884 MacCulloch v ICI Plc [2008] IRLR 846 Cadman v Health and Safety Executive [2004] IRLR 971 Buchanan v Commissioner of Police of the Metropolis [2016] IRLR 918 City of Oxford Bus Services Ltd v Harvey UKEAT/0171/18 White v Ministry of Justice ET 2201298/2012 James v Eastleigh Borough Council [CITATION] Amnesty International v Ahmed [CITATION] Claimant 131. In his submissions on behalf of the claimant, Mr Tomlinson submitted, in summary, that: 1. The respondent has wholly failed to establish a defence of justification to the act of forcibly retiring the claimant; 2. The respondent has failed to demonstrate that the aim of protecting the interests of the business was in this case a legitimate aim, or that the aim of ensuring inter-generational fairness played any meaningful role in its decisions; 3. The interests of the partnership may be directly related to legitimate social policy aims but are not a standalone basis upon which discrimination can be justified; 4. The respondent’s evidence does not prove that the policy was necessary to achieve any inter-generational fairness or that no less discriminatory alternative was available; 5. There was no evidence before the Tribunal that this particular respondent needed to free up equity to give progression opportunities to younger partners; 6. Although the respondent had identified aims in abstract and general terms, none of the aims had been properly related to the need for a mandatory retirement policy; 7. The policy adopted by the respondent in 2018 was extremely restrictive. There was no need for the policy to set the retirement age so low; 8. The respondent’s policy of requiring partners to retire at 60 is outdated and out of kilter with modern market and wider societal norms; 9. Recent case law has held higher mandatory retirement ages of 65 and 67 to be unlawful. The respondent has not cited any case in which a remotely analogous retirement policy has been found to be lawful; 10. Criticisms of the claimant’s conduct are irrelevant to the justification issue; 11. The rules for seeking a second extension to 65 are designed so as to more or less guarantee that one will not be obtained. The applicant must simultaneously show that s/he has handed over all of her/his cases, and also that s/he remains in a position to make an exceptional contribution going forward; 12. The impact of the policy was severely discriminatory, requiring particularly cogent grounds for justification 13. The respondent has failed to establish in evidence that it was reasonably necessary for the respondent to adopt and apply such a discriminatory policy; 14. The respondent failed to give any proper consideration to or to adopt less discriminatory alternatives; 15. There were obvious and much less discriminatory alternatives available to the respondent; and 16. None of the respondent’s witnesses could point to any steps taken to analyse whether there was an issue with equity flow, availability of profit points and performance. Rather, their evidence was based on assumptions, anecdote and prejudice. Respondent 132. Ms Davis submitted, on behalf of the respondent, that: 1. The claimant only alleged that the retirement policy was discriminatory when its application resulted in an outcome he did not desire; 2. The primary task of the Tribunal is to consider whether the policy was objectively justified on the date at which it was applied, and not whether the specific application of the policy to a particular individual was objectively justified; 3. The claims about the decisions not to approve an extension to the claimant’s partnership beyond age 63 are misconceived because age was entirely irrelevant to the criteria for approving postponement, and the decision to reject the application for a second postponement of the retirement age was entirely unrelated to age but rather was because the claimant did not demonstrate that he would make an exceptional contribution; 4. Neither the Equality Act 2010 nor the judgment in Seldon preclude an employer from having a retirement age or a retirement policy; 5. It is a question of fact for the Tribunal to decide what a legitimate aim is; 6. The aim of the respondent’s retirement policy was to protect the interests of the business and to ensure inter-generational fairness. The long-term health of the respondent and inter-generational fairness depend on profits being shared in a fair way across the generations; 7. Concrete evidence in support of each assertion made by an employer is not always necessary to establish justification. Whilst mere generalisations and stereotyped assumptions are not enough, there may be some cases where the proposition is so obvious that it barely requires evidence at all. Witness evidence alone may be sufficient; 8. The test for proportionality is one of reasonable necessity and is not a reasonable responses test; 9. The respondent does not need to establish that the retirement policy was ‘necessary’ in the sense that it was the only course open to it and there were no other means by which it could have achieved the aim; 10. The Tribunal must take account of the reasonable needs of the respondent’s business and make its own judgment based upon a fair and detailed analysis of the respondent’s working practices and business considerations; 11. In striking the balance between the reasonable needs of the respondent and the discriminatory effect of the retirement policy on partners, the Tribunal must focus on the discriminatory impact on the group of partners who will be disadvantaged by it and not the impact on the claimant as an individual; 12. Justification must be assessed as at the date upon which the policy was applied to the claimant; 13. The fact that the retirement policy had the consent of a very large majority of all partners, and that the partners were in an equal bargaining position when agreeing is a strong factor to be considered when determining proportionality; 14. The 2018 amendments to the retirement policy were a pragmatic and balanced approach which struck a balance between the different and competing interests of different generations of partners and the interests of the business. The new policy was carefully considered and widely debated; 15. The respondent did consider other means of achieving its aims – as set out in the Beck and Judson presentation; 16. A robust performance management process would not have achieved the respondent’s aims; 17. The fact that Jeremey Moore was granted an extension to just before his 65th birthday demonstrates that the decisions not to grant the claimant a second extension were not because of age; 18. The requirement on partners wanting to extend their partnership beyond age 63 was very far from being an unnecessarily high bar; and 19. The Tribunal’s assessment of this claim does not involve an assessment of the respondent’s administrative and record keeping skills. Conclusions 133. The following conclusions are reached on a unanimous basis, having considered carefully the evidence before us, the relevant legal principles and the submissions of the parties. The less favourable treatment issue 134. There were three separate allegations of direct age discrimination before us: i. The Board’s refusal to approve the claimant’s application to extend his retirement date from 30 April 2023 to 30 April 2025; ii. The Membership (partners’) refusal to approve the claimant’s application to extend his retirement date from 30 April 2023 to 30 April 2025; and iii. The termination of the claimant’s membership on 30 April 2023. 135. The first question we have had to consider is whether the respondent subjected the claimant to the above treatment. The respondent did not deny doing so, and we have no hesitation in finding, on the evidence before us, that the respondent did subject the claimant to the alleged treatment. 136. We also have no hesitation in finding that each of the actions above amounted to a detriment. It was clear that the claimant wanted to remain a partner in the firm, and the decisions not to allow him to do so and to terminate his partnership were unwanted. The actions resulted in the claimant losing a well remunerated job after many years with the firm. 137. The respondent accepts that the termination of the claimant’s membership on 30 April 2023 by the application of its retirement policy was less favourable treatment because of age but says that the policy was a proportionate means of achieving a legitimate aim. The legitimate aims relied upon are protecting the interests of the business and ensuring inter-generational fairness. 138. The respondent does not however accept that the Board’s refusal to approve the claimant’s application to extend his retirement date from 30 April 2023 to 30 April 2025 was less favourable treatment because of age. Nor does it accept that the partners’ refusal to approve the application was less favourable treatment because of age. 139. The respondent says that these decisions were entirely unrelated to age, but rather were because the claimant did not meet the criteria for a second extension. Both the Board and the Membership concluded that the claimant’s ongoing contribution, judged in its broadest sense, would not be exceptional. Age is, in the respondent’s submission, entirely irrelevant to the determination of whether: 1. A partner’s contribution is judged to be exceptional; and 2. A partner has agreed to and implemented a programme of passing over the goodwill attached to her/his practice and any other terms and conditions. 140. The respondent points to the fact that Jeremy Moore was granted an extension of his partnership to a few weeks before his 65th birthday. He only made one application for an extension, however. He was not in the position the claimant found himself in of having to apply for a second extension. 141. The respondent does, however, accept that the claimant’s age ‘may well have been’ the reason that he was required to make a second application. It also admits, in general terms that the application of its retirement policy to the claimant amounts to less favourable treatment because of age. There appears therefore to be some inconsistency in its position, because the claimant was only required to make an application for a further extension to the Board and subsequently the partners because of the application of the respondent’s retirement policy. 142. The claimant’s position on this issue is that the only reason the claimant was required to make an application to the Board and subsequently to the partners was because of age. The claimant compares his position with a hypothetical partner aged under the age of 60 who would not have been required to go through the application process in order to remain as a partner in the firm. 143. The claimant’s submissions on this issue were, in summary that : 1. The test is whether age had a “significant influence” on the claimant’s treatment (Nagarajan v London Regional Transport [2000] 1 AC 501); 2. Age was not just a significant influence but the crucial factor in the respondent’s decisions to refuse the second extension. Were it not for the fact that Mr Scott was 63, he would not have needed to apply for an extension to remain as a partner. The respondent only refused his extension because his age enabled it to do so; 3. Causation is simple and there is no need for a complex analysis of the subjective state of mind of the decision makers. Discrimination was inherent in the acts of refusing the claimant’s application. 144. In support of their submissions, Mr Tomlinson and Mr Hutcheon referred to the cases of James v Eastleigh Borough Council [1990] ICR 554, HL and Amnesty International v Ahmed [2009] ICR 1450, EAT. 145. In considering the question of whether the refusals of the claimant’s application for an extension were because of age, we have taken account of the burden of proof provisions in section 136 of the Equality Act 2010. We have reminded ourselves that the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination and are not, without more, sufficient material from which a Tribunal could conclude that the treatment was because of age (Madrassy v Nomura [2007] ICR 867 CA). 146. The claimant has, in our view, established, on the balance of probabilities, facts from which we could conclude, in the absence of an alternative explanation by the respondent, that the refusals were because of age. Those facts, in summary, were that the claimant was not required to go through the application process until he was 60, and then again aged 63. Partners below the age of 60 were not required to go through the application process. Those facts were not in dispute. We also take account of the fact that a higher level of performance was required of partners going through the application process than of other partners. Partners below the age of 60 are not required to demonstrate an exceptional contribution to the business, whereas those applying for extensions aged 60 and 63 are. Different standards were applied to different age groups. The Tribunal also takes account of the comments made by Mr Simpson in his evidence, to the effect that partners begin to ‘slow down’ as they get older. 147. The burden of proof has therefore passed to the respondent, and we have gone on to consider whether, as Ms Davis submits, the reason for the refusal of the application was entirely unrelated to age but was instead based upon the claimant not meeting the criteria for an extension. 148. We have had regard to the decision in James v Eastleigh Borough Council in which a difference in treatment arose from the Council’s policy of allowing those who had reached state pension age free access to a swimming pool, whilst those below state pension age had to pay. At the time, state pension age for men was 65 and for women it was 60. The House of Lords held that the claimant had been discriminated against on the ground of sex because ‘but for’ his sex, he would not have had to pay. 149. Although the ‘but for’ test has since fallen out of favour, in Nagarajan v London Regional Transport [1999[ ICR 877 the House of Lords held that discrimination is made out if the protected characteristic had a significant influence on the outcome, and that the important question in each case is why the claimant was treated less favourably. In R (on the application of E) v Governing Body of JFA and the Admissions Appeal Panel of JFS and ors [2010] IRLR 136, Lord Phillips, then President of the Supreme Court, identified two types of discrimination, ‘inherent’ and ‘subjective’. In some cases, such as James v Eastleigh Borough Council, treatment is ‘inherently discriminatory’ or inseparable from the protected characteristic and it is obvious why the claimant was treated less favourably. In other cases the treatment is not inherently or obviously discriminatory, and it is necessary to consider the conscious and subconscious mental processes of the alleged discriminator. 150. In Amnesty International v Ahmed a complaint of direct race discrimination was upheld when an employer did not promote an employee because it considered that her ethnic origin would cause a risk to her health and safety. The then President of the EAT, Mr Justice Underhill, expressed the view that the ‘but for’ test could be used in both types of direct discrimination – inherent and subjective, but should not be considered an ‘all-purpose substitute for the statutory language’. 151. We accept the claimant’s submissions that the type of discrimination alleged in relation to the refusal of the Board and the partners to grant the claimant a second extension aged 63 was inherent discrimination. The only reason the claimant was required to go through the application process was because of his age. A hypothetical comparator, namely a partner aged under the age of 60, would not have had to make an application. 152. This is not a case in which we have had to give much consideration to the question of comparators. It was clear from the evidence before us that the Board’s decision not to grant the claimant a second extension of his partnership, and the partners’ decision on the same issue, would not have been taken in relation to partners in their forties or fifties. Their ongoing partnership was not subject to Board or partner approval, 153. Had the claimant been 43, 53 or even 58 he would not have been put through the process. The criteria used to determine his application would not have been applied but for his age. We have no hesitation in finding that a partner aged 40 or 50 would not have had the retirement policy applied to them and would not therefore have been subjected to any of the detriments above. The respondent has not discharged the burden of proving, on the balance of probabilities, that the reason for the refusals of the application was not because of age. 154. We therefore find that the refusals of both the Board and the partners to grant the claimant’s application for an extension of his partnership amounted to less favourable treatment because of age. Legitimate aims 155. We have then considered whether the treatment of the claimant was a proportionate means of achieving a legitimate aim. 156. The legitimate aims relied upon by the respondent were: 1. Protecting the interests of the business; and 2. Ensuring inter-generational fairness. 157. This was set out in the response to the claim in the following terms: “primarily to protect the interests of the business and the interests of the individual and to ensure inter-generational fairness by adopting a pragmatic and balanced approach which sought a balance between: (a) The need for a robust performance management approach so as to allow confidence that long serving partners would continue to perform at a high level; (b) The need for better partner resource/succession planning; (c) The desirability of retaining partners approaching the previous retirement age but who were meeting their obligations to the partnership and making a high financial contribution; (d) The need to free up equity to give progression opportunities to younger partners, in order or achieve fairness; (e) Helping to avoid conflict with underperforming partners approaching the retirement age; (f) Legal obligations under the Equality Act 2010; and (g) Balancing the aims and desires of younger and older partners to ensure inter-generational fairness.” 158. In opening submissions the respondent described its legitimate aims as “protecting the interests of the business and ensuring inter-generational fairness”. In closing submissions they referred to them as: “protecting the interests of the business and ensuring inter-generational fairness and maintaining collegiality.” This was the first time that maintaining collegiality had been mentioned as a legitimate aim, but counsel for the claimant accepted that collegiality was a perfectly proper aim. 159. The Equality Act 2010 does not define what is meant by the phrase “legitimate aim” and that is a matter for the Tribunal to determine. In a direct age discrimination claim the legitimate aim must correspond to a real business need and be of a public interest nature, and pursue social policy objectives, such as, for example, intergenerational fairness (Seldon). Legitimate aims relied upon to justify less favourable treatment because of age are therefore more restricted than those which may be relied upon in indirect discrimination claims. 160. The aims do not have to be purely social policy related, however. In Air Products Plc v Cockram, the Court of Appeal emphasised that steps taken in the employer’s best interest may nevertheless be directly related to what is regarded as legitimate social policy. 161. In Seldon the court referred to intergenerational fairness and dignity as being two potential legitimate aims in direct age discrimination claims, but also commented that avoiding disputes about the fitness for work over a certain age could potentially be a legitimate aim. 162. In Age Concern England [2009] ICR 1080 the European Court of Justice drew a distinction between social policy objectives and individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness, although the Court recognised that a national rule may recognise a degree of flexibility for employers. 163. The claimant submitted that the Tribunal must also consider whether, in the circumstances of the employment concerned, the aims relied upon by the respondent are legitimate. In Seldon in the Supreme Court, Lady Hale commented that: “improving the recruitment of young people, in order to achieve a balanced and diverse workforce, is in principle a legitimate aim. But if there is in fact no problem in recruiting the young and the problem is in retaining the older and more experienced workers then it may not be a legitimate aim for the business concerned.” [para 61] 164. In considering the question of whether the respondent had legitimate aims for its retirement policy, we have reminded ourselves that we have to consider that question as at today’s date, and not at the time the policy was adopted. However, if there is limited evidence as to what was in the minds of the decision makers at the time, we can and should scrutinise the respondent’s aims with particular detail. 165. This is a case in which there was little evidence of what was in the mind of the respondent when it adopted its retirement policy. Whilst we accept Ms Davis’s submission that this case is not about the respondent’s record keeping, we note that the Equality and Human Rights Commission Code of Practice on Employment (2011) suggests at paragraph 17.4 that “Where resources permit, employers are strongly advised to maintain proper written records of decisions taken in relation to individual workers, and the reasons for these decisions. Keeping written records will help employers reflect on the decisions they are taking and thus help avoid discrimination. In addition, written records will be invaluable if an employer has to defend a claim in the Employment Tribunal.” Although this comment specifically identifies decisions about individual workers, we can see no reason why it should not have wider application. 166. The claimant submits that not all of the matters set out at paragraph 157 above relate to inter-generational fairness – specifically those at sub paragraphs (a), (c) and (e). He accepts that matters (b), (d) and (g) do potentially relate to inter-generational fairness but, in the claimant’s submission, no cogent evidence has been produced to show that the application of the retirement policy was necessary in the context of the respondent’s business. 167. In contrast, the respondent submits that the respondent’s witness evidence explains the ‘clear need’ to address the issue of partner retirement and succession planning due to the respondent not having been able to grow the business between 2008 and 2016, not promoting partners and not hiring partners from other firms. The long term health of the respondent and inter-generational fairness depends, the respondent says, on profits being shared in a fair way across the generations. 168. We accept that inter-generational fairness is a legitimate social policy aim. That much is made clear from the decisions of the higher courts, including Seldon. On the evidence before this Tribunal however, we find that the interests of the business and keeping the partners on board was at the front of the respondent’s mind when deciding the retirement policy. It was clear from the evidence of Mr Simpson and Mr Smedley in particular, that they wanted to find a solution to the retirement ‘issue’ that would meet with agreement from the partner group. That is, in our view, not unusual in a partnership in which a large majority is needed for a new policy to be put in place. Nor does it mean of itself that the aims of the policy were not also social policy aims. 169. We have reminded ourselves that the fact that the respondent may have had a different focus at the time it adopted the retirement policy, does not prevent the respondent having a legitimate social policy aim, as ex post facto rationalisation is permitted. 170. There was no evidence before this Tribunal of the respondent needing to free up equity in order to give progression opportunities to younger partners. Mr Simpson’s evidence was that the business did not grow for a number of years, but there was no cogent evidence to suggest that this was because of older partners remaining in the business. Quite the contrary, at the time the business was not growing (2008 to 2016) the respondent had a mandatory retirement age of 60 for partners, which was described as a ‘cliff edge’. 171. Mr Smedley was unable in evidence to identify any individual who had left the business due to perceived lack of progression opportunities. The closest the respondent came to evidence of a need to free up equity was the evidence of Mr Crayton who described a perception in the market that older partners were blocking the equity. This was a perception that he had before he joined the respondent, at a time when the firm had a mandatory retirement age of 60 for partners and appears to have been dispelled when he became a partner in the firm. He described the situation as having got even better after he arrived. 172. The Beck and Judson presentation in 2015 suggested that, rather than having an issue with too many partners, such that younger partners and solicitors could not be promoted, the respondent had just the opposite problem. Their presentation identified that retaining a retirement age of 60 would result in a significant reduction in the number of partners over the next ten years. 173. There was also no evidence before the Tribunal of any imbalance between the aims and desires of younger and older partners, or indeed of any tension between different generations of partners. On the contrary the evidence suggested that the respondent was a harmonious partnership, where great emphasis was placed on achieving change through consensus. 174. The respondent also relied, in support of its legitimate aims of protecting the interests of the business, on a number of performance related matters, including the need for a robust performance management approach to ensure partners continued to perform at a high level, and avoiding conflict with under performing partners approaching retirement age. Mr Simpson’s suggestion that the performance of many, or even most partners begins to decline in the latter years of their career was not supported by any documentary or objective evidence. It was entirely anecdotal and based upon his personal beliefs and perception. Moreover, he also described all of the partners at the firm as being high performers, and supported a retirement policy which required a higher level of performance from older partners than from those under 60. 175. Lady Hale in Seldon, noted that the purpose of age discrimination law is “To address the mismatch between reality and past assumptions or stereotypes….these assumptions have usually concerned age as a proxy for continuing incompetence or capability or financial security or intentions about work..”. The views expressed by Mr Simpson were, in the Tribunal’s view, based upon assumptions and stereotypes about age and about partners’ performance and energy as they get older. 176. Whilst we accept that avoiding difficult and potentially degrading performance management of older partners could potentially be a legitimate aim linked to collegiality, there was no cogent evidence before this Tribunal that poor performance at partner level was an issue for the respondent. Moreover, the respondent had a process for assessing and addressing partner underperformance, as each year every partner had to prepare a paper for REMCO and was challenged on it. REMCO then had the power to recommend a reduction or an increase in the partner’s profit points, and the evidence before us suggested that they used that power. Mr Simpson accepted in evidence that partners at Walker Morris are used to being ‘put through their paces’ as part of the annual review by REMCO. 177. Whilst we have some concerns about the lack of evidence to back up the respondent’s assertions about legitimate aims, we recognise that evidence is not required, on this issue, for every assertion. In Air Products PLC v Cockram the Court of Appeal did not accept that witness evidence alone amounts to mere assertion and lacks the necessary weight. . 178. We accept that there was a need within the respondent’s business to address the issue of partner retirement and succession planning. That much is clear from the Beck and Judson predictions of a drop in partner numbers and from Mr Simpson’s evidence about the lack of growth in the business. Having a retirement age for partners is, in the Tribunal’s view, useful for workforce planning, particularly in senior positions. Succession planning can, in our view, form part of inter-generational fairness as well as being in the best interests of an organisation. It enables an organisation to know when vacancies are likely to arise and to offer progression paths to younger and more junior staff. 179. We also accept that the respondent’s partner group was a congenial group which operated through consensus, and that it was important to the business to retain that collegiate atmosphere. 180. There was some evidence before us that managing performance could give rise to conflict. That was certainly the case with the claimant, who, after the first extension of his partnership aged 60, reacted strongly and adversely to criticism of his performance by REMCO, was openly critical of Mr Simpson in emails copied to all of the partners and behaved inappropriately to staff. Such were Mr Simpson’s concerns about the claimant’s behaviour that he wrote to him under the Colleague Dignity and Respect policy and asked him to apologise. 181. We find on the balance of probabilities that the respondent had the following legitimate aims for its retirement policy: 1. Workforce and succession planning to ensure it had sufficient partners to run its business profitably. In our view this fits within the social policy aim of inter-generational fairness; and 2. Maintaining a collegiate and cohesive atmosphere amongst its partner group in the interests of the business. This fits, in our view, within the general social policy aim of maintaining dignity of individuals in the workplace. Proportionality 182. We have then gone on to consider whether the respondent’s treatment of the claimant was a proportionate means of achieving the legitimate aims. This involves: 1. Considering whether the treatment was an appropriate and reasonably necessary way of achieving those aims (it does not have to be the only way); 2. Considering whether something less discriminatory could have been done instead; and 3. Balancing the needs of the claimant and the respondent. 183. We take account of the fact that the test for proportionality is one of reasonable necessity and is not a ‘range of reasonable responses’ test. We accept the respondent’s submissions that the respondent does not need to prove that its retirement policy, and retirement at the age of 63 was necessary in the sense that it was the only way of achieving its aims, such that no other ways were available. 184. We also take account of the fact that the retirement policy adopted in 2018 had the consent of a large majority of the partners, and that the claimant voted in favour of it himself. 185. We have reminded ourselves that as a Tribunal we must take account of the reasonable needs of the respondent’s business and make our own judgment based upon a fair and detailed analysis of the respondent’s working practices and business. 186. Whilst we accept Ms Davis’s submission that concrete evidence in support of each assertion made by an employer is not always necessary to establish justification, mere assertions, generalisations and stereotyped assumptions are insufficient. The more serious the impact of the discrimination, the more cogent must be the justification. 187. Dealing first with the aim of workforce and succession planning, the evidence before us suggested that, whilst the respondent had a need to plan its workforce and succession, that need was created, in large part, by the ‘cliff edge’ retirement age of 60 which applied prior to the adoption of the new retirement policy. Beck and Judson identified in their presentation the risk of a large reduction in partner numbers if the business retained a retirement age of 60 and did not recruit. Despite this, the new retirement policy retained what the respondent termed a ‘presumptive’ retirement age of 60, and although it set out a process for applying for an extension, there was a very high bar of exceptionality applied to applications for extensions. The default position remained that partners would retire at 60. 188. There was no evidence before us that in practice either the respondent’s old or new retirement policies actually helped with workforce and succession planning. At the time the policy was applied to the claimant the respondent had more partners than before (57) and there was no evidence whatsoever before the Tribunal to show that there was a difficulty recruiting, promoting or retaining young / junior employees or that employees or junior partners were leaving because of the lack of opportunity to progress. This was despite the fact that David Smedley’s evidence to the Tribunal was that the firm does carry out exit interviews when staff leave. 189. James Crayton’s evidence was that before he joined the firm in November 2015 he was aware of a perception in the market that there were a number of older partners at the respondent who were working beyond the normal retirement age and ‘hogging’ the equity. That perception was not correct because in fact there were very few partners prior to 2015 who stayed on as partners after the age of 60 (we heard of just two). Mr Crayton also said in evidence that things had improved both by the time he joined and subsequently. 190. There was no evidence before the Tribunal of senior partners ‘hogging the equity’. The evidence was that the respondent does not impose a limit on the number of equity points, so more points can be allocated as necessary. We accept however that the respondent did not want to ‘dilute’ the value of profit points. The number of points has dropped over the years however and there did not seem to be a problem with equity distribution. In 2015 there were 2,729 points divided between 50 partners. In 2018 when the new policy was adopted there were 2,327 points divided between 46 partners and in 2022 (the last date for which data was available before the claimant’s retirement) there were 2,486 points and 57 partners. By the time the claimant’s application to extend his tenure beyond age 63 was considered, fewer profit points were being used than in 2015, and that did not appear to be preventing promotion to partner because there were more partners in the business. 191. Ms Davis’s submission that “The Respondent was promoting very few partners, and it was not hiring partners from other firms” was not supported by the evidence before us. There was quite simply no evidence that the respondent was not promoting partners, and there was evidence of at least one partner, James Crayton, having been recruited from another firm. 192. The respondent’s evidence in this case was focussed on the process used to adopt its current retirement policy, rather than on why it was reasonably necessary to adopt the policy in order to achieve its legitimate aims. Much of the respondent’s evidence on justification did not get beyond broad assertions, some of which were based upon discriminatory assumptions, for example in relation to the perceived reduction in energy levels in older partners. There was a lack of cogent evidence before the Tribunal in relation to the following: 1. Any lack of opportunities for junior employees and partners to progress; 2. That employees were leaving because of a perceived lack of opportunities to progress; 3. That equity was being ‘hogged’ by senior partners; 4. Of any deterioration in the performance of partners as they approached 60 or 63 or even beyond; 5. Of difficulties recruiting staff; and 6. That the respondent gave any serious consideration to alternatives to its retirement policy. 193. It is difficult to see how a new retirement policy which retains the same ‘default’ retirement age of 60 can be said to be reasonably necessary to address the concerns identified in the Beck and Judson presentation, particularly when the bar set for an extension beyond age 60 is that of exceptional performance. That being said, the complaints of discrimination before this Tribunal do not concern the retirement age of 60, but rather retirement at the age of 63. The Beck and Judson presentation tended to show that there was a need for partners to work beyond 60 and for there to be succession planning to ensure that the respondent was not left with too few partners. Despite this the respondent retained a ‘default’ retirement age of 60 and its new policy was designed to ensure that only exceptional partners could work beyond 60. 194. The evidence before the Tribunal was that, since the new policy was introduced in 2018, only four partners, including the claimant, have successfully applied for an extension beyond age 60, and none have applied successfully aged 63 for a further extension. The possibility of an extension does not, in our view, mitigate sufficiently against the discriminatory impact of the respondent’s retirement policy. We note that in Pitcher v Oxford University the EAT held that the availability and granting of extensions to the retirement age did not sufficiently mitigate the discriminatory impact of the retirement age, and that even when extensions were granted the impact was severe because those who got an extension had to move onto fixed term contracts. 195. We therefore find that there was very little evidence before this Tribunal to support a conclusion that forcing partners to retire age 63 was reasonably necessary for workforce and succession planning. 196. We turn next to the legitimate aim of collegiality and cohesion and have asked ourselves whether the respondent’s retirement policy was reasonably necessary to achieve that aim. 197. There was, as set out above, a lack of objective evidence of any deterioration in performance of partners in their 50s and 60s. Mr Simpson demonstrated discriminatory assumptions about and attitudes towards older partners, which were not supported by the evidence before us. Mr Simpson’s comments about partners’ performance and energy levels tailing off in their 50s and beyond are the type of assumption that the age discrimination legislation is designed to counter. 198. There was no comparative evidence before us of the performance of partners of different ages, and no evidence to suggest that performance deteriorated by the age of 63. This was despite the fact that partner performance is assessed each year by REMCO. As a result, this Tribunal cannot find that it would have been necessary for the respondent to performance manage older partners had they not left the firm through retirement at age 60 or 63. In reaching this conclusion we are not saying that performance can never deteriorate with age, but merely that there was no evidence before us in this case of performance deteriorating by age 63. Consideration of alternatives 199. There was also limited evidence before this Tribunal of the respondent giving serious consideration to the availability of less discriminatory alternatives to the one that it adopted. That being said, the lack of such evidence in itself is not in our view fatal to a justification defence. Rather it is for this Tribunal to decide whether, on the evidence that is before us, there were less discriminatory alternatives available to the respondent. 200. In our view, there were a number of less discriminatory alternatives that the respondent could have adopted. In relation to the aim of workforce and succession planning, the respondent could have used career conversations with partners and staff to identify what their short and long term career goals were. The new retirement policy did provide for career conversations aged 55, 57 and 62, and there was no reason why such conversations could not have been extended so that, for example, they took place on an annual basis with employees and partners. They could have formed part of the REMCO process for partners. 201. The respondent could have adopted one of the proposals suggested in the Beck and Judson presentation, namely requiring partners to hand over equity and influence whilst retaining the partner tag. That would have had less of a discriminatory impact than what was, in effect, forced retirement should an application for an extension not be successful. The respondent could also have adopted a higher retirement age than 60 and 63. 202. The respondent could as an alternative have adopted one of the proposals set out in the claimant’s 2016 paper on retirement, such as allowing partners to work until they were older whilst incentivising early retirement, and ‘moderated late retirement’ with partners losing 10% of their equity for each year they remained a partner over a certain age. 203. Similarly, the respondent could have used part time working for partners who did not wish, for whatever reason, to devote the very large number of working hours each week to the partnership but did not wish to retire. Ultimately, if a partner did not want to retire and the respondent needed to succession plan, that partner could have been given notice using the respondent’s general power to expel partners. 204. All of these options would have had a less discriminatory effect than the policy chosen by the respondent. 205. In relation to the aim of collegiality and cohesion, there were also less discriminatory alternatives to the respondent’s retirement policy. The most obvious one was to use and strengthen the REMCO review process, which was an existing process that the partners were familiar with. The respondent’s partners were described as being high performers, robust individuals, and who were used to being ‘put through their paces’ every year by REMCO. 206. Strengthening the REMCO process to deal with any perceived underperformance would not have involved a new and formal performance management process, but rather adapting an existing process that partners are familiar with. A well-managed process which is respected by all those who undergo it, would not necessarily have led to conflict or a lack of cohesion. Moreover, we note that the respondent uses performance management for its staff, and there is, in our view, no reason why partners should be exempt from performance management. There were other policies adopted by the respondent, such as the Colleague Dignity and Respect policy, which were applied equally to employees and partners. 207. The respondent could also have used its compulsory expulsion powers to remove partners. The respondent told the Tribunal that it had never used its general powers to expel partners on 6 months’ notice. Whilst that may well be the case, it was clear that the partnership was not averse to making difficult decisions about individuals, as it did when it refused the claimant’s second application for an extension. The claimant was forced to leave the partnership because of his age with very little notice, having been informed of the Board’s decision not to approve his extension on 20 March, and of the Membership’s decision on 6 April, just a few days before his forced retirement on 30 April. Balancing act 208. In reaching our conclusions on the question of proportionality, we have weighed the impact of the respondent’s retirement policy on those affected by it (not just the claimant but also any other partners aged 63) against the reasonable needs of the respondent’s business. 209. The impact of the retirement policy on those affected by it is significant. Forced retirement results in the end of a successful career as a partner in a reputable law firm, and in the loss of earnings which, in some cases, could be more than £1 million a year. The possibility of an extension did not mitigate the discriminatory impact substantially, because of the high bar set to achieve an extension, which excluded many partners, and of the conditions attached to an extension, such as the handing over of goodwill and client relationships, and the imposition of a restrictive covenant. 210. No one has, as yet, been granted a second extension at the age of 63. Jeremy Moore was granted just one extension. Moreover, the criteria used when considering whether to grant a partner an extension beyond 63 are inherently discriminatory as they require a partner to demonstrate a different and higher level of performance than is required of younger partners. 211. We take account of the fact that 43 out of 45 of the partners voted in favour of the policy, including the claimant. This is an organisation in which emphasis is placed upon making decisions by consensus. Whilst that is a factor in determining proportionality, it is not, in our view, the most important factor and is not determinative. 212. We also take account of the fact that, in contrast with the position when Seldon was decided, there is no longer a statutory default retirement age. The default retirement age of 65 (which was the same as the compulsory retirement age adopted by the partnership in Seldon) has been abolished. In addition, state pension age has increased to 66 and is due to increase again to 67. We take judicial notice of the fact that many employers have now abolished retirement ages entirely, and that those who retain them tend to have higher retirement ages. The respondent was ‘ bucking the trend’ by insisting on a presumptive retirement age of 60 and making extensions beyond 60 subject to exceptional performance. 213. We note that in 2013 David Smedley advised the respondent that a retirement age of 60 was not sustainable, that the “external drivers are against us in this regard” and that “if we maintain age 60 we will be vulnerable to claims which we will find difficult to defend.” Despite this advice, the respondent retained a ‘presumptive’ retirement age of 60 with the possibility of extensions, but only for exceptional partners. Mr Smedley did not explain in his evidence whether his view that a retirement age of 60 was not sustainable had changed and, if so, why. 214. Neither party was able to identify any case in which a retirement age of 63 had been found to be justified. That does not however mean that a compulsory age of 63, or indeed any other age, could not be justified. In reaching the conclusions that we have in this case we are not finding that an employer can never justify compulsory or even ‘presumptive’ retirement. 215. In this case, however, the respondent has not persuaded us, on the balance of probabilities, that its actions were both appropriate to achieve its aims and reasonably necessary to do so. The claims for direct age discrimination are well founded and succeed. Time limits 216. For the reasons set out above, we uphold all of the claimant’s complaints of direct age discrimination. The dates of the discrimination were as follows: 1. The decision of the Board to refuse the claimant’s application for an extension : 20 January 2023. This decision was not however communicated to the claimant until 14 March 2023; 2. The decision of the Membership to refuse the claimant’s application was taken and communicated to the claimant on 6 April 2023; and 3. The forced retirement of the claimant: 30 April 2023. 217. The last two discriminatory acts took place within three months of the claimant commencing ACAS early conciliation on 4 July. The complaint about those acts was therefore presented in time. 218. The decision of the Board was taken more than three months before the claimant began early conciliation, although the claimant only became aware of the decision on 14 March. This decision is, therefore, on the face of it out of time. 219. The Tribunal has no hesitation however in finding that the decision of the Board was part of a continuing act of discrimination. All of the acts of discrimination arose out of the application of the respondent’s retirement policy and were not single or distinct acts. As such they fall into the category of ‘some policy, rule or practice in accordance with which decisions are taken from time to time’ (Owusu v London Fire and Civil Defence Authority [1995] IRLR 574, EAT) The acts of discrimination were intrinsically linked, as it was the decisions of the Board and the Membership which resulted in the last act of discrimination, the claimant’s retirement on 30 April 2023. 220. All of the complaints of discrimination were therefore made in time. Remedy 221. With the consent of the parties, remedy was not dealt with during this hearing. A separate remedy hearing will be listed and case management orders will be made to prepare the case for that hearing. Employment Judge Ayre Date: 17 February 2025 Public access to employment tribunal decisions Judgments (apart from judgments under rule 52) and reasons for the judgments are published, in full, online at http://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/