The EAT has upheld the decisions of two different Employment Tribunals (‘ETs’), one finding that the University of Oxford’s mandatory retirement age for academic staff was objectively justified, the other finding that it was not.
The default retirement age was withdrawn in April 2011. Since then, employers have been at risk of directly discriminating against their employees on the basis of age if they impose a compulsory retirement age unless they can show it can be objectively justified as a proportionate means of achieving a legitimate aim.
The University of Oxford had in place an Employer Justified Retirement Age (‘EJRA’) of 67. Their objective justification reasons included:
— Endorsing inter-generational fairness;
— Allowing for succession planning; and
— Promoting equality and diversity.
Employees could apply for an extension to work beyond the EJRA, but extensions were only usually agreed upon in exceptional circumstances. If one extension had been granted to an employee, it was rare for another one to be approved.
Professor Pitcher worked as both Associate Professor of English Literature at Oxford University and an Official Fellow and Tutor at St. John’s College. When he reached the age of 67, he was compulsorily retired. He had applied for an extension, but this was declined. He brought claims of unfair dismissal and age discrimination. The ET disagreed with Professor Pitcher and held that there was no discrimination or unfairness, so he appealed to Employment Appeal Tribunal (‘EAT’)
Professor Ewart also worked for the University of Oxford as an Associate Professor in Atomic and Laser Physics. When he reached the age of 67, he successfully applied for an extension in accordance with the University’s procedure. However, when his second extension request was denied, Professor Ewart also brought claims of unfair dismissal and age discrimination, separate from Professor Pitcher. The ET agreed with Professor Ewart that the EJRA was not objectively justified and therefore discriminatory. They also found he had been unfairly dismissed. In response, the University appealed the age discrimination decision to the EAT.
— The EAT agreed with the decisions made by the separate ETs, so both were upheld even though they came to opposite conclusions about the same policy at the same University.
— The role of the EAT is to decide whether or not the ET made an error of law – on the different evidence presented to each ET, they were entitled to make the decisions they did. For example, statistical evidence was presented to the ET in Professor Ewart’s claim which supported his arguments; this data was not available in Professor Pitcher’s case.
— It was possible for different ETs to reach different conclusions when considering the same measure adopted by the same employer in respect of the same aims – the EAT’s role “was not to strive to find a single answer but to consider whether a particular decision was wrong in law”.
It is not ideal for employers looking to justify a mandatory retirement age to be faced with two conflicting decisions based on very similar facts. However, the cases do illustrate that it is possible to justify a mandatory retirement age, particularly where the reasons relate to allowing younger generations to progress, succession planning and the promotion of equality. This will be easier where an employer has carefully gathered sufficient evidence to justify the legitimate aim. If you want to rely on objective justification, you need to ensure that you have evidence to support your contention that the measures you are putting in place demonstrably contribute to the achievement of your legitimate aims.
If you are considering operating an EJRA, or require assistance with a claim that you have received, please get in touch with our highly experienced team.