The Employment Tribunal found that although the provision constituted direct age discrimination, it was justified. In part this was found on an assumption that performance tails off at around this age. The claimant appealed on various grounds, and the Equality & Human Rights Commission was permitted to make representations as interveners.
The EAT dismissed all the grounds save one, namely that the assumption that performance dropped off at 65 was not supported by any evidence and involved stereotyping. In principle, such a rule could be justified, but it was not justified in this case. The case was remitted to the same Tribunal to consider whether the need to achieve the other legitimate aims was sufficient to justify the rule.
In his judgment, Elias P. made the following observations:-
- the test with respect to direct age discrimination is not fundamentally different to that which applies to the other forms of discrimination. Nothing in domestic law nor the Directive requires a different test;
- there is no basis for Tribunals to direct themselves that it is only in very exceptional cases that direct age discrimination should be permitted - "it must apply the normal principles of legitimate aim and proportionality";
- the fact that, at the time when the rule was agreed upon the firm gave no thought to age discrimination or its justification, does not prevent it from justifying that rule now;
- the fact that the partners consented to the rule originally may be a factor to consider, but it does not automatically make it justified;
- for a partnership to seek to conduct matters so as to achieve "a congenial relationship amongst the partners" is a perfectly legitimate aim - "the equality laws are not designed to determine for companies what might be appropriate objectives"
[Thanks to Tom Croxford of Blackstone Chambers, who acted for the Respondent, for telling me about this case. Thanks also to www.emplaw.co.uk for allowing me to reproduce their summary of the EAT's key observations]