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Freshfields partner loses age discrimination claim
11 October 2007
Edward Cooper, Head of Employment at the award-winning Russell Jones & Walker, comments:
"A particularly interesting point in this case was the tribunal's finding that in considering whether the discriminatory treatment was justified, it was necessary to consider not just the treatment but also the context ion which the treatment occurred.
Although Mr Bloxham suffered less favourable treatment because of his age, it did not consider that Freshfields had unlawfully discriminated against him, taking into account the problems faced by Freshfields in changing their long standing retirement allowance arrangements.
The idea that direct discrimination can ever be justified is a fairly new concept in terms of UK law - and so this is a first. However, it is only a tribunal decision."
Background information
Normally, in discrimination cases, any treatment which involves treating someone less favourably than another person due to their [sex/race/etc] is what is called direct discrimination and can never be justified in any circumstances. Once you are able to demonstrate to the tribunal that less favourable treatment on those grounds did occur, that's it - case over. Now the way that the age discrimination laws have been written are completely different - direct discrimination can potentially be justified. This means that even when you have shown that less favourable treatment did occur, and even though it is simply due to the difference in age, an employer can avoid liability if it can be shown that the treatment was a proportionate means of achieving a legitimate aim.
There was quite a bit of debate about this before the law came into effect, since it is an entirely new concept - and the indications were that it would be pretty tough for an employer to be able to justify any less favourable treatment to a tribunal, and that the basis for legitimising any such conduct would have to be very robust indeed. Now this case will be attracting a lot of attention because the tribunal have found that even though there was less favourable treatment due to age, it was objectively justified, and so there was no unlawful discrimination on Freshfields' part. If this ruling is right, then the law may be being interpreted more widely than some might have anticipated - which is beneficial to employers. It is of course only a first instance employment tribunal ruling - and this issue has obviously never yet gone before an appellate court - so it really would be very interesting if Mr Bloxham appealed - so that the EAT could clarify exactly what treatment will be justified and what will not.