Fennell v Foot Anstey LLP (Age Discrimination)

Direct discrimination requires less favourable treatment because of the protected characteristic. The comparison may be actual or hypothetical. Evidence about actual individuals may assist in constructing a hypothetical comparator, but an actual comparator must satisfy the material-circumstances requirement in Equality Act 2010.

Statistics showing a difference in age and treatment do not, without a sufficient evidential link between them, necessarily shift the burden of proof. An Employment Tribunal may move directly to the reason for treatment where a hypothetical comparison makes that appropriate. It must nevertheless test the employer’s explanation and be satisfied that it is wholly unrelated to age, including unconscious discrimination.

The Claimant, a solicitor and limited equity partner, was not offered a new equity partnership during the Respondent firm’s restructuring. He was instead offered a legal-director role and later left the firm. He alleged direct age discrimination, relying on statistics concerning the ages of limited equity partners selected for equity membership and on comparisons with other partners.

The Cardiff Employment Tribunal dismissed the claim. It found that the Respondent used an individual, multi-factorial selection process and that concerns about the Claimant’s performance and business-development potential, rather than age, explained its decisions.

The Claimant appealed on grounds concerning the burden of proof, statistical evidence, comparators, scrutiny of the Respondent’s explanation, and the required comparative exercise.

1. Appeal dismissed. Although the Employment Tribunal’s reasoning was at points confused and insufficiently structured, read as a whole it disclosed no error of law.

2. Under section 13, direct discrimination requires a real or hypothetical comparison and treatment because of age. Actual individuals may provide evidence for constructing a hypothetical comparator. They are not statutory comparators unless their material circumstances are the same as the claimant’s, as required by section 23(1) of the Equality Act 2010.

3. The Tribunal was entitled to find that the statistics alone did not establish a prima facie case. They showed differences in age and treatment, but not the additional evidential link from which a reasonable tribunal could infer that the Claimant’s treatment was because of age.

4. The Tribunal permissibly found that none of the proposed actual comparators met the section 23(1) requirement. The selection exercise was individual and multi-factorial. Financial performance was only one relevant matter; practice area, personal circumstances, partnership criteria and business-development potential also mattered.

5. Once the case was properly treated as involving a hypothetical comparison, the Tribunal could move to the reason for the treatment. It did not merely accept the Respondent’s witnesses as credible. It tested the explanation against the Claimant’s case, contemporaneous material, group-leader reports and individual appraisals. Its conclusion that the decisions were in no sense related to age, including subconsciously, was open to it.

6. The challenges concerning two individual evidential comparators were attempts to reargue factual findings. The Tribunal had evidence supporting the material distinctions it drew. No perversity or failure to conduct a comparative exercise was established.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal against the dismissal of his age-discrimination claim.
• Cardiff Employment Tribunal: dismissed the Claimant’s claim of unlawful age discrimination in a judgment sent to the parties on 1 July 2015.