1. The first ground argues that there is a principle that where there is a provision which would achieve the legitimate aim with less discriminatory impact than the measure relied upon, then the measure relied upon cannot be justified. The Tribunal erred in excluding the question of justifiability of the particular age chosen by the Respondent for retirement. The Claimant's case had been that either 68 or 70 would be an age which would have served just as well. The particular age was in issue throughout the proceedings. It could not have been otherwise, since the age selected by the Respondents was 65, but it is right to say that there was far less emphasis in the earlier hearings on the precise age as opposed to the argument that there could be no mandatory retirement age at all, which was for a while the Claimant's primary case.

1. The Tribunal had identified the Court of Appeal as disposing of the first ground. The Respondent through Mr Croxford, Queen's Counsel, who appears with Ms Neill on this appeal, submits that the Court of Appeal decision was not controverted by the Supreme Court; it deals clearly with the point; it was raised as ground number five before the Court of Appeal (see [2011] ICR 64 against letter E) and in dealing with the choice of 65 as the age Sir Mark Waller, with whom Hughes and Laws LJJ agreed said:

"38. There is a distinction between a cut-off date in relation to the 'dead men's shoes' aims, and the 'collegiality aim'. Under-performance as a result of age is not relevant to 65 being chosen as a cut-off to encourage recruitment or long-term planning. That being so it seems to me that the mere fact that the firm might have chosen some other age in relation to those aims cannot automatically lead to the conclusion that the rule which provides for retirement at 65 is not justified. A rule which adopts 66 is less discriminatory to partners aged 65, but is now more discriminatory to partners aged 66. The selection of any age is going to be more discriminatory to that age. If that makes the rule unlawful, it would simply be impossible to justify a retirement age introduced with those aims. Directive 2000/78 (recital 14) seems to contemplate the legitimacy of a retirement age and it cannot thus have envisaged that it would be impossible to justify one age because a different age would be less discriminatory to persons of the age chosen.

39. The question is whether the clause introduced with the legitimate aims is a proportionate means of achieving those aims. If it is proportionate to choose 65, the fact it would be less discriminatory to some to have chosen 66 cannot in my view render the clause unlawful. It is true there was no evidence as to whether it would have made any difference to associates or others whether the age chosen had been 68, 65 or 63. But in my view the fact the firm might have justified any one of those ages does not mean that it is unable to choose one at all. The choice of 65 when regulation 30 actually renders lawful 65 in the employer/employee context must support the choice of 65 as a fair and proportionate cut-off point."

1. Lady Hale made it clear, paragraph 62 of her judgment in the Supreme Court, that it was one thing to say that the aim of achieving a balanced and diverse workforce was appropriate and necessary and another to say that a mandatory retirement age of 65 was appropriate and necessary to achieving that end. It is one thing to say that the aim to avoid the need for performance management procedures was legitimate and another to say that a mandatory retirement age of 65 was appropriate and necessary to achieving it. She observed that the means had to be carefully scrutinised in the context of the particular business concerned in order to see whether they did meet the objective and whether there were not other less discriminatory measures which would do so. Mr O'Dair founds himself upon those last remarks.

1. It was said on his behalf that it would be less discriminatory, insofar as the Claimant was concerned at any rate, if the age were older. He argued for a specific age of 68. He also argued that by envisaging a range of possible retirement ages which might have been justified, the Tribunal fell foul of the principle expressed in Hardy and Hansons Plc v Lax [2005] ICR 1565. There it had been argued, in relation to a refusal of part-time working, that the range of reasonable responses was to be applied when determining objective justification. In the judgment of Pill LJ at paragraphs 31 and 32 that was rejected.

1. However, as Mr Croxford points out, Pill LJ did not go so far as to say that there was only one solution to a particular problem which might be justified as necessary. He recorded the argument of counsel for the successful Claimant as being that the test did not require the employer to establish that the measure complained of was "necessary" in the sense of being the only course open to him. It was for the Employment Tribunal to weigh the real needs of the undertaking expressed without exaggeration against the discriminatory affect of the employer's proposal. At paragraph 32 he said:

"[...] That qualification (that is the use of the word reasonably) does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend. The presence of the word 'reasonably' reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal [...] is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the employers' submission (apparently accepted by the appeal tribunal) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances."

1. In my view the Tribunal was entitled to conclude that 65 was an appropriate age. The fact that it might, in the words of Sir Mark Waller or in the Tribunal's own words, have identified a different date within very much the same age range but which was slightly later does not mean that there was an error of law. I reach that conclusion for these reasons. First, I accept the point which the Tribunal took, and which is made to me by Mr Croxford, as to the effect of the Court of Appeal decision. Second, the word "necessary" is qualified by the word "reasonably". This qualification is essential if one is looking for a particular age. As is obvious, if it were to be said that a day later than a given age would discriminate less, as it would if the interests of the retiree were to be considered, it would therefore be wrong in law not to take a day later as the date: and if a day later still, the same would apply - but then as a matter of principle it would seem that no date could be chosen lawfully because any date would be capable of being rendered unlawful by the argument that a slightly later date would serve just as well.

1. Yet, the effect of the judgments of the superior courts thus far has been that it is entirely appropriate to meet the legitimate aims of this employer that there should be an age. An age is necessarily expressed as one point in time. The issue for the Tribunal is to determine where a balance lies: the balance between the discriminatory effect of choosing a particular age (an effect which, as the Tribunal noted, may work both ways, both against someone in the position of the Claimant but in favour at the same time of those who are associates, and thereby in the interests of other partners, whose interests lie in the success of the firm and its continued provision for them) and its success in achieving the aim held to be legitimate. That balance, like any balance, will not necessarily show that a particular point can be identified as any more or less appropriate than another particular point. This is not to accommodate the band of reasonable responses rejected in Hanson but to pay proper and full regard to its approach to what was reasonably necessary, given the realities of setting any particular bright line date.

1. The second ground was that the Tribunal erred in law in finding for the Respondent even although the partners, who bore the burden of proof, did not provide an explanation of why retirement at 65 was necessary. As Mr O'Dair emphasised in his final submissions, the Tribunal in giving its reasons for rejecting his client's case did not identify any headline fact which showed that 65 rather than another age was the place at which to set the balance. The fact he would be looking for was not one deriving from extraneous considerations such as the default retirement age or decisions of the European Court, which had in their own particular circumstances upheld ages of 65, but evidence relating to the particular circumstances of the firm. Sir Mark Waller at paragraph 39, as I have quoted, referred to there being no evidence.

1. This is an argument, in effect, that the Tribunal could not come to the conclusion that it did because no evidence had been put forward by the partnership which could justify the decision. As Mr Croxford points out, the dismissal of the Claimant's appeal to the Supreme Court is inconsistent with any suggestion that there was insufficient evidence. In what she said, Baroness Hale made it plain that it might be open to the Tribunal to hold on the material before it that 65 was an appropriate age. At paragraph 68 she said this:

"As to whether the means chosen were proportionate, in the article 6(1) sense of being both appropriate and (reasonably) necessary to achieving those aims, the case is already to go back to the ET on the basis that it had not been shown that the choice of 65 was an appropriate means of achieving the third aim. The question, therefore, was whether the ET would have regarded the first of two aims as sufficient by themselves. In answering that question, I would not rule out their considering whether the choice of a mandatory age of 65 was a proportionate means of achieving the first two aims. There is a difference between justifying a retirement age and justifying this retirement age. Taken to extremes, their first two aims might be thought to justify almost any retirement age. The ET did not unpick the question of the age chosen and discuss it in relation to each of the objectives. It would be unduly constraining to deny them the opportunity of doing so now. I would emphasise, however, that they are considering the circumstances as they were in 2006, when there was a designated retirement age of 65 for employees, and not as they are now."

1. In seeking to show specific evidence which shows a particular choice of age as appropriate the evidence may not always be as strong and compelling as it is in other areas, so argues Mr Croxford. That in part is because of the inevitable spectrum of speculation around the effect of altering the age from one figure to another. In dealing with concepts such as retention and workforce planning he is inevitably correct. They depend upon assumptions and estimates as to how people will act or react, not in general labour force terms such as might be the subject of expert evidence, though in part those are appropriate, but in relation in particular to the personalities and practice with which a firm is concerned. That is inevitably going to be reflected in the evidence of witnesses who say what happened at that firm and give their own views as to the situation.

1. The requirement that the Tribunal say why 65 was necessary is not addressing the question of why 65 was chosen and whether it was reasonably necessary as a means of addressing the legitimate aim the employer had. That is because once it is accepted, as it is, that a date is appropriate, the only questions are which date, and what particular factors may argue in support of that date as opposed to some other; the object being to avoid discrimination, but balancing the discriminatory effect against the objective aims.

1. Here the Tribunal did have some evidence. I do not accept that it was restricted simply to the paragraphs which I have cited from 79 to 81. It had dealt with the evidence in summary at paragraphs 76 to 78; it had referred back to the evidence which it had accepted during its first sitting in 2007. An argument that there is no evidence to support a particular conclusion means that there must be no evidence at all. I do not accept that even upon the basis that there was limited evidence the Tribunal would be disentitled from coming to the conclusion it did. But, more than that, at paragraph 80, as it seems to me, the Tribunal was implicitly taking into account its own view of the labour market and the world of employment. Mr O'Dair argues that the observations made there are hopelessly general. I do not agree. They refer in context to this particular firm and, therefore, to the evidence that there had been about this particular firm. The conclusion at 81 is generally expressed but appropriately so. It sets out the rival considerations. It has often and rightly been said that a Tribunal does not have to dot every 'i' nor cross every 't'. It summarised its views here. It was not inappropriate that it should do so. There was, in my view, no error of law in reaching the conclusion it did.

1. In passing I should mention that I was taken to the case of the Commission v Hungary (Case C-286/12) [2013] 1 CMLR 44 as being a case in which the European Court of Justice had found that there had been a failure to justify a retirement age of 62. That was, however, a case on very different facts from the one before me. Judges had been entitled to continue in work until the age of 70. At paragraph 67 the court noted that they would have had a legitimate expectation that they would be able to remain in office until that age. The failure of the Government was to introduce sufficient transitional provisions which would have prevented the particular disadvantage caused to those who were appointed at a time when they had that expectation. This could easily have been done without affecting the achievement of the legitimate aim. That point is made at paragraph 68. The conclusion was that by adopting a national scheme requiring compulsory retirement of judges, prosecutors and notaries when they reached the age of 62, which gave rise to a difference in treatment on the grounds of age, was not proportionate as regards the objective pursued. I do not think that case assists on the issue whether this case on its particular facts, having regard to the particular circumstances of this business, as the Tribunal plainly did, should have been determined other than it was.

1. The third ground argued that it was an error of law to take into account as relevant the consent of the Claimant and others and the default retirement age. This is said to be perverse. As Mr Croxford points out, this argument is suggesting that it was perverse to follow a conclusion which the Supreme Court reached. In Lady Hale's judgment at paragraph 65 she recognised that the agreement of a party to a measure later affecting them was relevant. The Tribunal did not say it was decisive. It took account of the consent of the parties and the default retirement age in helping it to conclude that the choice of 65 was not other than reasonably necessary as an appropriate response to meeting the legitimate aim.

1. In ground four it is said the Tribunal erred in law in paragraphs 82 to 88 in that it took account of irrelevant factors, they being the state pension age and the aim of collegiality. Reliance was placed upon the case of Dansk Jurist-og Okonomforbund v Indenrig-og Sundhedsministeriet (Case C-546/11) [2014] IRLR 37. That was a case in which civil servants who had reached the age at which they were able to receive retirement pensions were solely for that reason denied entitlement to availability pay intended for civil servants who had been dismissed on the grounds of redundancy. The point there was not that the decision maker had wrongly taken account of state retirement age. It concerned the accessibility of the availability payment which would otherwise have been made and was only not made because of the age of some of those who would have received it. I do not consider this case has anything to offer in helping me to see whether this Tribunal erred by taking account wrongly of something they should not have done in reaching the decision which they did.

1. The position rather is demonstrated better by Fuchs and another v Land Hessen (Joined Cases C-159/10 and C-160/10) [2011] 3 CMLR 47. That considered three aims, they being to encourage the recruitment and promotion of young people, to improve personnel management and to prevent possible disputes concerning employees' fitness to work. A precise age was chosen, that being 65. It was held not inappropriate that that should be the case. In my view it is plain that in establishing whether one age is to be selected, from a very narrow range beyond which it would be inappropriate, it is not wrong in law to have regard to factors which assist with where it might be placed. I see the remarks of Lady Hale in the concluding paragraph of her judgment at 68 as saying just that.

1. The point about collegiality should not be misunderstood. The Tribunal did not take into account a conclusion that if regarded on its own an age of 65 would be necessary for achieving the collegiality aim. Rather, the point here was that there was nothing inconsistent with the aim of collegiality in choosing 65. To the extent it was, if it was, some years earlier than it might have been, nonetheless the same effect resulted. There would be no question here of performance management of the embarrassing type envisaged by the principal. It seems to me appropriate that the Tribunal should have had regard to that not so much as setting the date but at least in satisfying itself that a different date need not be preferred.

1. Finally I turn to the fifth ground, which was the significance of the collegiality aim. Much of what I have just said relates to this too. The argument on paper, not pursued orally before me, was that if a variety of ages would have done the job with regard to planning or associate retention, the only age which could be said to be reasonably necessary in the circumstances of this business was the one required by collegiality. Since the Respondent had failed to prove it its case failed.

1. I do not accept that this is so. The Tribunal was examining whether workforce planning and retention justified the age of 65. The question of collegiality was separate from and distinct from those two issues. There was nothing inconsistent in the conclusion that was reached about planning and retention. I do not see that this gives any ground for thinking that a careful and considered judgement by the Employment Tribunal, as this was, was to any extent in error.

1. The first instinct, as it seems, of the Claimant was to accept at the Case Management Discussion that the aims of retention and workforce planning objectively justified a retirement of 65. Viewed now, after argument, that attitude was appropriate. The Tribunal came separately to that conclusion without taking that concession into account other than to note that it had been made and withdrawn. It did so for reasons which amounted to a factual conclusion as to which there was some evidence in support. It did not take into account any inappropriate matter nor leave out of account anything which it should otherwise have taken into account. It came to a conclusion which was in line with the higher authorities which have so far considered this case. Its statement of the law was, so far as it went, impeccable. In conclusion, this appeal must and does fail.