In a case of real interest to the education sector and those involved in equality and diversity issues, the Employment Appeal Tribunal (EAT) has recently upheld opposing decisions of two separate employment tribunals regarding age discrimination. One employment tribunal had found the University of Oxford’s compulsory retirement age was objectively justified, while another tribunal came to the opposite conclusion. The two cases were brought by professors who were denied extensions due to the retirement policy of the University of Oxford (“the University”). The presentation and evidence in respect of the claims differed in material respects. In both cases the decision was appealed to the EAT.
The proportionality assessment a tribunal is required to undertake when considering whether direct age discrimination is objectively justified, results in the chance of different tribunals reaching opposing decisions when faced with different factual matrices despite the consideration of the same policy, employer, and legitimate aims.
The background to the case
Employer Justified Retirement Age (EJRA)
Following the repeal of the default retirement age in 2011, if an employer is operating a compulsory retirement age, they will be at risk of unlawful discrimination on the grounds of age against its employees, in the absence of a proportionate means of achieving a legitimate aim.
From October 2011, the university operated an Employer Justified Retirement Age (“EJRA”). At the relevant time, this was age 67. Exceptions to the EJRA are permitted through the means of an extension procedure and are granted in exceptional circumstances. St John’s College, a college of the university, also applied the EJRA.
Professor Pitcher was an Associate Professor of English at the University and an official Fellow and tutor in English at St John’s College (“the college”). He was compulsory retired from the position he held aged 67 as a result of the EJRA. He applied for an extension but was denied. The claims he brought were of direct age discrimination and unfair dismissal. His claims were dismissed by the employment tribunal, finding the EJRA to be justified and the dismissal fair.
Professor Pitcher appealed the decision to the EAT.
Professor Ewart was an Associate Professor of Atomic and Laser Physics at the University. He was also subject to the EJRA. Initially, he obtained an extension of his employment with the university. As a result, Professor Ewart took up a fixed-term position and left his substantive post. He applied for a further extension but this application was denied and therefore he faced compulsory retirement. The claims he brought were also claims of direct age discrimination and unfair dismissal. The employment tribunal upheld Professor Ewart’s claims.
The university appealed the decision to the EAT.
Both appeals were dismissed by the EAT.
What are the key points and material differences in these cases?
The EAT held the university and college had legitimate aims of:
- Inter-generational fairness;
- Succession planning; and
- Equality and diversity.
The EJRA was able to facilitate other measures with regard to the achievement of the legitimate aims through guaranteeing vacancy creation was not postponed. This would help to enable the recruitment of younger, more diverse individuals into senior academic roles.
Professor Pitcher’s case
There was limited evidence presented in this case showing the policy’s effect. The Court of Appeal’s decision in another case was referred to, Air Products plc v Cockram. In this case the court acknowledged the challenges in demonstrating that compulsory retirement age resulted in a high retention rate shortly after the rule was instigated. The EAT found the tribunal hearing Pitcher’s case was entitled to give weight to other factors where there was a lack of statistical analysis. Evidence from a survey of retirees suggested that in the absence of the EJRA, a quarter would have remained in employment for another three years. It could not be found as implausible to imagine that without the EJRA, turnover would be considerably lower.
Professor Ewart’s case
In this case, the tribunal had the opportunity to consider a statistical analysis that demonstrated that the rate of vacancies created by the EJRA was insignificant, at 2-4%. There was not therefore adequate evidence to demonstrate the EJRA could facilitate the achievement of the legitimate aims.
Further, Professor Ewart’s application regarding the extension was in relation to pursuing working in a university role, whereas, Professor Pitcher’s application for the extension focused on his appointment with the college. This gave rise to different issues in relation to the potential detriment arising, meaning the focus of evidence before each tribunal differed.
What does this recent case highlight for employers?
Although the two opposing decisions were upheld, neither erred in law. Employers should be aware in these types of cases, the proportionality assessment a tribunal is required to undertake when considering whether direct age discrimination is objectively justified could result in the possibility of different tribunals reaching opposing conclusions. This is despite the consideration of the same policy, employer and legitimate aims, and that each case will turn on its own facts, and the evidence available to show whether, in a particular case, the use of the policy can be justified.
The decisions also highlight evidence that it is unwise to assume the effect of an employer’s policy is to significantly increase the rate vacancies are created. This will certainly provide thought for employers who seek to justify EJRAs.
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