Can age discrimination ever be justified?

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 that 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 receive 100% not 80% of
his pension entitlement.

The tribunal concluded that Bloxham did suffer direct age discrimination.
However, surprisingly, it accepted that such treatment was justified. The
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
  Bloxham;
• the firm considered the difficulties faced by all ages of partners and the
  transitional arrangements took account of these as much as possible;
• no other solutions were put forward Mr Bloxham.

Law firms and the Big Four, who may face similar issues, will, for the
moment, be breathing 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.

While 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 not guaranteed, therefore, that other firms’ similar schemes will
survive. This decision is only the beginning of this debate.

Harriet Bowtell is an assistant solicitor at Russell Jones &
Walker