Age Discrimination

In Seldon v Clarkson Wright & James, a firm of solicitors had a provision in their Partnership Agreement which required partners to resign at 65 (although they could be kept on by agreement). The claimant alleged that this was age discrimination.

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]

Homophobic Banter

The Court of Appeal has, today, overturned the EAT's decision in English v Thomas Sanderson Ltd. (see bulletin 20/2/08 for EAT decision).

By a majority, the Court of Appeal held that the Sexual Orientation Regulations 2003 DO protect a heterosexual man who is repeatedly tormented by homophobic banter (including names such as “faggot”) when (a) he is not gay, (b) he is not perceived or assumed to be gay by his tormentors, and (c) he accepts that they do not believe him to be gay. The banter arose purely because he had attended a boarding school and lived in Brighton.

The judgment of Laws LJ, who dissented, is twice as long as the combined judgments of Sedley LJ and Lawrence Collins LJ, who allowed the appeal. The judgments make very interesting reading.

[Thanks to Marcus Pilgerstorfer for telling me about this case. He has written an excellent summary of it, which appears on the Old Square Chambers website]

Time limits in the EAT

We all know the strict Abdelghafar rule against extending the 42-day time limit for appealing to the EAT. But what about the 28-day time limit that an Appellant has to apply for a r3(10) hearing if his/her appeal is rejected under r3(7)? Is it the strict Abdelghafar approach? Or the more relaxed approach the the EAT takes for, for example, lodging bundles of authorities or skeleton arguments?

This has now been decided by Underhill J. in Echendu v Morison Supermarkets. He holds that the strict Abdelghafar approach applies, so the 28-day time limit cannot be extended unless exceptional reasons apply (para 20).

He also holds that the 28-day period starts running from the date the r3(7) Notice is sent out, not the day it is received by the parties. Since the rule 3(7) Notice is not normally sealed by the EAT, the sensible rule of thumb is to assume that the letter is sent out on the date on the Notice itself, although that could be rebutted by other evidence (eg the postmark on the envelope) - paras. 13-15.

[Thanks to Dale Martin of Littleton Chambers, who successfully acted for the Respondent, for telling me about this case]

Restricted Reporting Orders

The EAT has, in Tradition Securities & Futures SA v Fariad, held that a restricted reporting order (‘RRO’) prohibiting the naming of the Claimants in relation to allegations of sexual misconduct can be varied in order to permit naming of those Claimants, notwithstanding that the previous RRO had been varied so as to permit reporting of the Claimant’s other discrimination claims against the alleged perpetrators.

In reaching this conclusion, Underhill J stated:

• an application to vary a RRO is governed by the principles in Hart v English Heritage (2006), namely a Tribunal should only vary a case management order where there is a material change of circumstance or some other exceptional reasoning justifying reconsideration.
• the Claimants’ change of position that they no longer wished to have the protection of the RRO was sufficient reason to justify reconsideration by the Tribunal.
• in principle, if the naming of the Claimants was likely to lead to identification of the alleged perpetrators by members of the public, it was open to the Tribunal to draft the RRO so as to prohibit such identification.
• on the facts of the case, it was not established that the identification of the Claimants was likely to identify the alleged perpetrators. Crucially, no identifying detail had been published in relation to the other discrimination claims and would almost certainly not be published in the future because the press would be aware that such publication would in practice lead to the alleged perpetrators’ identification in relation to the sexual misconduct allegations.

[Thanks to Sian Reeves, pupil barrister at 1 Temple Gardens, for providing this summary]

Annual Increase in Compensation Limits

The annual increase in compensation limits has just been published (for dismissals and other trigger events occurring after 1st February 2009). The key increases are:

• compensatory award: £63,000 to £66,200
• a 'week's pay': £330 to £350
• maximum redundancy payment: £9,900 to £10,500

Full details here.