Mr Fennell joined Foot Anstey as a limited equity partner in 2011, aged 49. Between May 2012 and May 2013 Mr Fennell’s performance deteriorated. Foot Anstey decided to remove Mr Fennell from the partnership. Mr Fennell objected, so Foot Anstey reversed its decision. Foot Anstey instead implemented a performance review process. Mr Fennell failed to meet the main target, but did manage to hit the more accomplishable “soft target range”.

Meanwhile, Foot Anstey decided to abolish limited equity partners (“LEPs”) as part of a restructure. A new grade of equity partners would be created and legal directors would be employed. Because of Mr Fennell’s poor performance, Foot Anstey offered Mr Fennell a legal director role rather than an equity partner role. Mr Fennell objected to that decision and, in the absence of any alternative role, his partnership was terminated. He was 52 years old at this time.

Mr Fennell argued that both the imposition of the performance process and the decision not to include him in the new partnership were direct age discrimination. He argued that those under 45 years of age were not subjected to the performance process and were also more likely to be offered partnership positions.

Mr Fennell brought a claim of direct age discrimination to the Employment Tribunal. The claim was dismissed.

Mr Fennell appealed to the EAT.


Mr Fennell argued that the ET failed to adopt the two-stage approach to the burden of proof. He argued that he had been required to show facts from which an ET “would” be able to infer discrimination, rather than “could” infer discrimination.

The EAT rejected this. The EAT noted that the ET’s application of the test was, at times, “confused and unstructured” however it found that the ET had properly considered Mr Fennell’s case. The EAT accepted that a reasonable ET could not infer discrimination from the statistical picture alone and the ET was entitled to question the statistics. Although Mr Fennell had shown a difference of treatment and a difference of age, he had failed to show the “something more” that suggested a link between those two factors. In essence, the EAT was deferring to the statistician’s catchphrase “correlation does not imply causation”.

The EAT further held that none of the LEPs amounted to viable comparators as their circumstances were very different to that of Mr Fennell. In the absence of a statutory comparator, the EAT held that it was right for the ET to consider a hypothetical comparator and move directly to looking at what was the “reason why” the treatment in issue occurred.

Mr Fennell made further arguments relating to the Employment Tribunal's decision making. He argued that the Employment Tribunal failed to properly scrutinise the evidence, that it reached a perverse conclusion in relation to comparators and that it had not properly assessed whether there were any material differences in Mr Fennell's case. The EAT also rejected these further arguments.

The judgment is available here.

Fennell v Foot Anstey LLP (Age Discrimination) [2016] UKEAT 0290_15_2807 (28 July 2016)