On the case: defending a high-profile age discrimination claim

The silk: Dinah Rose QC is a barrister at Blackstone Chambers. She graduated from Oxford University in 1987 with a degree in modern history and was called to the Bar in 1989. She took silk in 2006 and is highly regarded for her expertise in the fields of public and employment law and human rights.

The junior: Jane Mulcahy is also based at Blackstone Chambers. She graduated from Birkbeck, University of London, in 1989 and worked as a journalist before being called to the Bar in 1995. 

The case brought by former partner Peter Bloxham against the law firm Freshfields Bruckhaus Deringer in 2006 was the first major test of new regulations making age discrimination illegal. Peter Bloxham’s claim, reportedly worth in the region of £4.5 million, followed complex changes to the firm’s pension scheme. Dinah Rose QC, who respresented Freshfields, explains, ‘Freshfields undertook a massive restructuring of its pension scheme and inevitably there were some losers. Peter Bloxham was caught by the transitional arrangements, brought a claim under the age discrimination laws and lost because the changes were justified.’

The case had implications for the pension arrangements of other organisations with partners and for the treatment of future age discrimination claims. It attracted great interest within the legal community, and the risk of damage to Freshfields’ reputation was very high. ‘It was a case that was very important to Freshfields,’ Dinah explains. ‘It was the first big case under the new legislation and it was not a case that they could settle. Settling would undermine the whole structure of the pension scheme. It was very carefully fought. It was one of the most thoroughly prepared employment cases I have ever been involved in.’

‘It was the first big case under the new legislation and it was not a case that they could settle.’

Dinah became involved soon after the claim was lodged in November 2006, and before long Jane Mulcahy came on board as the junior barrister on the case. They were instructed by the solicitor Michael Burd, head of employment at Lewis Silkin, and also worked very closely with senior partners at Freshfields, particularly managing partner Peter Jeffcote. Dinah comments, ‘I had a very experienced junior and Lewis Silkin, so I had very good support and an exceptionally knowledgeable client.’ She adds that whereas usually a barrister would have a lay client and a professional client, in this case the lay client was itself a leading law firm: ‘I was very aware of the need to be on my mettle!’

Months of preparation before the hearing

Over the winter and during the months leading up to the hearing at the London Employment Tribunal in July 2007 Jane spent much of her time helping with extensive preparation of witness statements and other written documents and on handling correspondence. Dinah’s role was to lead and manage the team, supervise the drafting of documents and make final alterations, and give the key legal advice. Jane drafted documents and was the first port of call for the paperwork.

‘There was a huge amount of correspondence to be dealt with. It was a very document-heavy case,’ Jane says. ‘For a tribunal case, it was unusual – we had twelve files. There was a lot of paper handling and details, and a lot of organisation; you had to stay ahead of it. My role was very much a classic junior position. Dinah ran the case in a very hands-on way, together with Michael Burd, and when it came to trial she did everything. We prepared as far as we could to support her; she was the advocate.’

It was vital for Dinah to be able to demonstrate to the tribunal that Freshfields had done everything possible to make the pension scheme fair. Jane explains, ‘Before the restructuring, what was beginning to happen was that the young partners were disproportionately having to pay for the pensions of senior people, and it was becoming very expensive for them. Freshfields went through a consultation process to make it fair and in April 2006 the new scheme came in. We made lots of arguments about why it wasn’t age discrimination. We succeeded on the question of justification – that Freshfields had done everything they could to make it fair.’

Presenting the case in a clear and vivid way

One of the key challenges was to prepare ways of communicating the impact of different pension scheme proposals to the tribunal effectively, in order to show that what Freshfields had decided to do was fair. An employment tribunal is made up of a legally qualified chair and two lay people, typically an employers’ representative and a trade union representative. They do not necessarily have expertise in the field of pensions, so it was important to be able to present the technical details in a clear and vivid way.

Dinah came up with the simple, graphic analogy of slices of a pie, with the profits of the partners as the pie and their pensions as slices. ‘If Peter Bloxham was asking for more pie, he could only get it by taking it off someone else,’ Dinah explains. ‘We needed to use a strong concrete image, so it wasn’t just a row of figures. We used a lot of different coloured graphs, so you could see the impact of different pensions
arrangements.’

Throughout the run-up to the hearing Dinah was juggling the case with a number of others. Typically, she says that her workload consists of a portfolio of ten to twenty cases at any one time, on issues that might range from public law to human rights. ‘You do have to be able to switch your attention.’ Nevertheless, it was crucial for her to know the Freshfields case inside out. ‘I had to read every single piece of paper. It was highly technical, and I had to be absolutely clear that I understood how the original scheme functioned, how the new scheme functioned and the impact of the transitional plan, and also that I could make the argument that there was no alternative arrangement that would have had a less discriminatory effect. Preparation is key. Knowledge is power – the idea of a successful litigation is that nothing should be left to chance.’

‘Preparation is key. Knowledge is power – the idea of a successful litigation is that nothing should be left to chance.’

In the two to three weeks immediately before the hearing Dinah focused intensively on the case and prepared to cross-examine Peter Bloxham. ‘A cross-examination is very carefully prepared and structure is crucial. You need to make sure your questions are in an effective order, that you make strong points early on. You don’t want the witness to be comfortable – you have to maintain control. It is all prepared in advance so that when you are in there you’re thinking “This is fine; I know what I’m doing.” But you have to be flexible and if something emerges that you are not expecting you need to be familiar enough with the case to take it in your stride.’

A learning experience

Following the hearing in July, the tribunal ruled unanimously in October 2007 that Freshfield’s pension reforms had been ‘a proportionate means of meeting a legitimate aim’. The team acting for Freshfields had successfully argued that if it was the case that changes to the scheme had a discriminatory effect, this impact was justified.

For Jane, the case had been a great opportunity to work with experts in a fast-developing field. ‘Dinah is a proper star. She’s fabulous, she has a searing intellect. Michael Burd is among the very best employment lawyers. They both have enormous experience of discrimination cases – it was really very fulfilling to learn at the feet of people like that. I gained a very much better understanding of how to deal with an age discrimination case and this issue of justification and the evidence you need for it.’

For Dinah, one of the key challenges of the case was how to present such a technical case to a lay tribunal. She also relished the experience of working with Freshfields. ‘The people there are extremely responsive and knowledgeable. We formed a very close-knit team. I was also confident we were going to win it, which was cheering. I found it extremely satisfying – and we had a party with pies when we won!’