The solicitors of former Freshfields Bruckhaus Deringer partner Peter Bloxham have hinted that their client may appeal after losing a £4.5m age discrimination claim yesterday (10 October).
Dawsons, the lead solicitors for Bloxham in his case against his former firm, stated: “Our client is naturally disappointed but his case has clarified the interpretation and application of the new law. Although the tribunal’s decision has not gone his way he was entirely justified in questioning a process that has been shown to be discriminatory. “
The statement continued: “We are presently reviewing the implications for our client and the options open to him.”
Freshfields has said that it would fight any appeal against the judgment.
The tribunal found unanimously for Freshfields in the claim, the first to be bought under new age discrimination laws that were introduced last October, and the first claim against the magic circle firm by one of its partners in its 250-year history.
However, the tribunal found that Freshfields’ transitional arrangements between the old, uncapped Schedule II pension scheme and its successor, Schedule IIA, were potentially discriminatory.
The judgment reads: “In those circumstances, the Claimant has established that he suffered less favourable treatment as compared with partners in London aged 55 and over as at 30 April 2006 and that such treatment, unless justified, is discriminatory.”
This could form the basis of a possible appeal. Dawsons’ statement read: “The Tribunal found that our client was indeed discriminated against on the grounds of age. Nevertheless in this particular case the Tribunal was persuaded by the arguments put forward by Freshfields that its actions were justified.”
Age bias differs from other forms of discrimination in that if it is found to be a proportionate means to a legitimate end, it is lawful.
The tribunal found that Freshfields’ aim - the reform of a costly and unfair pension system - was legitimate and that there were no less discriminatory means available to them. Therefore, any less favourable treatment that Bloxham suffered was proportionate.
On all other counts, the judgment fell unequivocally for Freshfields. Crucially, this included the question of the 20 per cent “cliff”, or disparity, between 55 year-old partners and 54 year-olds. The 55-year-olds were entitled to their full Schedule II pension, while 54-year-olds were entitled to 80 per cent of it. Again, the judgment found that the cliff was legitimate and “the Respondent’s aims were, in our judgment, wholly legitimate.”
The judgment is a boon to the firm, which is currently facing a similar claim from former corporate partner Lois Moore, now at Shearman & Sterling.
Bloxham, who is now advocate general for the policyholders of the Prudential, has been out of the country and personally unavailable for comment.
Dawsons’ head of litigation Jo Keddie led for Bloxham, instructing Tim Pitt-Payne of 11KBW, while Freshfields turned to regular adviser Lewis Silkin, with head of employment Michael Burd leading the team. He instructed Dinah Rose QC of Blackstone Chambers.