Freshfields’ victory in its high-profile age discrimination battle could be applied in a wider setting and help clarify some of the potentially discriminatory issues surrounding the use of lockstep, according to many partners.
Employment partners have for some time questioned the use of a system where promotion is dependant on age, believing it could potentially be viewed as discriminatory under new regulations introduced last October, unless partnerships can prove it is a proportionate way of achieving their aims.
One head of employment at a top 10 law firm commented: “The result will give partnerships the flexibility to introduce the changes they feel appropriate. Although Freshfields’ pensions reform was unique, the point is that it was found to be discriminatory and yet legitimate. Basically, as long as you are as thorough in your reforms as Freshfields obviously was, you are off the hook.”
The result is being closely scrutinised by the employment community as the first real test for partnerships of the
Employment specialist Ronnie Fox of boutique Fox Law said: “This case has drawn attention to the potential discriminatory nature of lockstep. It shows that any indirect discrimination as a result can probably be justified, although partners may need to amend their partnership deeds to explain why the method is proportionate.”
He added: “There will be a lot of relieved senior partners. This is an extensive case to judge and people will be looking at it for guidance of a general nature as it is the first real test of the regulations.”
Linklaters employment chief Raymond Jeffers commented: “Lawyers have been waiting to see whether age discrimination would be judged by the same parameters as sex and race. In sex and race you can only justify indirect discrimination. This case shows that the test is different for age and that you can justify direct age discrimination — providing you are as diligent in your research as Freshfields.”
Peter Bloxham, the firm’s former restructuring head, had alleged Freshfields discriminated against him on the basis of age when it introduced a new, less generous pension scheme. He claimed the magic circle law firm forced him to retire, affecting his entitlements.
As reported on legalweek.com (10 October), The Central London Employment Tribunal ruled unanimously in favour of Freshfields over Bloxham’s claim regarding a change in the firm’s pension scheme. It found that Freshfields had been discriminatory on the grounds of age when the new pensions provisions were introduced, but that it had been balanced in its approach when making the changes. It said the test of whether the reforms were done in a proportionate manner as a means of achieving a legitimate aim was “comfortably passed”.
Simmons & Simmons London head of employment Simon Watson said: “This is good news for partnerships. It has defined age discrimination for them.”
Bloxham is currently deciding whether he will appeal the judgment. The verdict could have an impact on former Freshfields corporate partner Lois Moore, who is bringing a similar age discrimination claim against the firm.
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