In Scott v Walker Morris LLP an employment tribunal has held that a law firm directly discriminated against a partner because of age when it refused his request to extend his membership under its retirement policy. Under that policy, a partner who wished to continue working beyond 60 could apply to extend their membership period until the age of 63 in reliance on “exceptional contribution” and, at 63, they could apply again to remain until age 65.
Mr Scott, who had been due to retire on 30 April 2020, successfully applied to extend his membership for three years. However, his subsequent application when he was 63 to extend his membership for a further two years to 65 was unsuccessful. He brought a claim for direct age discrimination. The firm admitted the application of its retirement age to Mr Scott and the termination of his membership of the LLP on 30 April 2023 was less favourable treatment because of age. It argued that this was justified as a proportionate means of achieving the legitimate aims of protecting the interests of its business and ensuring inter-generational fairness.
The tribunal accepted that the firm has legitimate aims in maintaining a collegiate and cohesive atmosphere amongst its partner group by avoiding difficult and potentially degrading performance management of older partners (which fell within the general social policy aim of maintaining dignity of individuals in the workplace) and workforce and succession planning to ensure it had sufficient partners to run its business profitably (which fell within the social policy aim of inter-generational fairness).
However, the Employment Tribunal found that the firm’s treatment of Mr Scott was not an appropriate and reasonably necessary way of achieving those aims. There was no cogent evidence before the tribunal that poor performance at partner level was an issue for the firm (which, in any event, had a process for addressing partner underperformance), or that the retirement policy helped with workforce and succession planning. Further, the firm could have adopted several less discriminatory alternatives. For example, career conversations with partners and staff to identify short-term and long-term career goals, increasing the potential retirement ages or adopting “moderated late retirement” with partners losing 10% of their equity for each year they remained a partner over a certain age.
This update was first published by Practical Law and was reported in the Law Society Gazette among other publications.
