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Age discrimination – can it really be justified?
Accountancy Age
23 October 2007
Age discrimination has now been unlawful in the UK for just over a year. Direct age discrimination means treating someone differently for unjustifiable reasons. Ordinarily these are reasons that are not necessary for the aims of the business to be achieved. Employers and lawyers alike have been eagerly awaiting clarification from the courts as to what extent age discrimination can be 'justified' in practice. It had been thought that the threshold for employers would be high and that any benefit schemes which linked benefits to a particular age would be severely criticised and found unlawful by the courts.
The long awaited decision in the case of Bloxham v Freshfields which considers exactly this point was handed down earlier this month. Mr Bloxham, a former partner in Freshfields law firm, brought a claim against the firm based on the fact that as a result of the firm’s pension reforms if he retired at age 55 rather than age 54 (his age) he would have received 100% not 80% of his pension entitlement. His age was, therefore, the reason for the difference in the result.
The tribunal concluded that Mr Bloxham did suffer direct age discrimination. However, surprisingly, it accepted that such treatment was justified. The particular factors supporting the decision included the following:
- it was agreed by all that the firm could not sustain the current pension arrangements and reform was essential;
- the firm carried out a long consultation with all partners, including Mr Bloxham;
- the firm considered the difficulties faced by all ages of partners and the transitional arrangements took account of these as much as possible; and
- no other solutions were put forward by Mr Bloxham.
Law firms and the Big Four, who may face similar issues, will, for the moment, be heaving a huge sigh of relief. However, they should not take too much comfort. The Bloxham decision is only a tribunal decision, hence not binding on other courts or tribunals. Whilst this decision may be persuasive it may be limited to its particular facts and other tribunals may not give such a broad interpretation to direct justification particularly if an employer has not taken the steps above when implementing such a scheme. It is therefore certainly not guaranteed that other firms’ similar schemes will survive. This decision is only the beginning of this debate.
Harriet Bowtell
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