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Kate Bostock joined ASOS in October 2012 as executive director of product and trading, having been poached from Marks and Spencer where she had been head of general merchandise for eight years.

After seven short months, she has left with immediate effect. While major changes at the top of fashion brands are not uncommon, comments by ASOS CEO Nick Robertson implied that Bostock’s wealth of experience and success in the fashion industry may have made her too outdated for his “young” company.

Robertson, 44, gave the reasons for Bostock’s early departure as “culture, fit and time of life”. Bostock is 56 years of age. When asked to explain his comments, Robertson said: “Our average age is 27 or 28. People get to the stage in their career where they are either up for a very big challenge or they are not”.

It is no secret that ASOS is built around its brand. It is an urban online shopping destination for trendsetting at cheap prices. It describes itself as “Young Fast Fashion”. So can cultural fit related to age be justified? Ms Bostock’s statements following her dismissal seem to accept the proposition. She said “Sadly…ASOS isn’t the right place for me”.

According to press reports, Bostock did not receive a pay off on departure and therefore one assumes that she was not required to make the statement by the terms of a settlement agreement. One can only speculate whether she does accept the proposition, or if she decided to make a conciliatory statement to protect her reputation in the industry.

Comments similar to those made by Robertson have been found to be age discriminatory. In Court v Dennis Publishing Ltd, the tribunal found that a 55-year-old director’s dismissal for redundancy was an act of direct age discrimination.

The tribunal found it relevant that the owner of the company had published a book in which he said that “by the time talent is in its mid to late 40s or early 50s, it will have become very expensive. Young talent can be found and underpaid for a short while provided the work is challenging enough”.

The high profile tribunal case of the former BBC Countryfile television presenter Miriam O’Reilly also highlights the issue of age and cultural fit. O’Reilly successfully argued that she had no problems in performing her role but that she was regarded as too old to be seen on screen.
The tribunal found the BBC had subjected Ms O’Reilly to direct age (and sex) discrimination. While television, like fashion, might appear to be an obvious place where the “fit” of one’s age/image would be important and justifiable, the employment tribunal did not agree.

Age discrimination, unlike other forms of discrimination, can be objectively justified, even when that discrimination is direct. The defence of objective justification can be successfully argued if an employer can show that the discrimination was a proportionate means of achieving a legitimate aim, but the bar is set quite high. The examples of legitimate aims given by BIS in its guidance are matters such as facilitating employment planning, encouraging and rewarding loyalty and recruiting or retaining older people.

Fitting in with a company’s youth culture, image or a brand is unlikely to be persuasive to employment tribunals. In a case which looked at the objective justification of indirect disability discrimination, the cool US fashion retailer Ambercrombie and Fitch infamously lost an employment tribunal claim when its “Look Policy” clashed with an employee on the shop floor who had a prosthetic arm.

Given current employment legislation and the decisions of the employment tribunal, employers should continue to tread very carefully when making decisions relating to cultural “fit” – regardless of whether that relates to age or any other protected characteristic.

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