The Employment Appeal Tribunal (EAT) has considered appeals in two different tribunal claims for age discrimination, in which the tribunals reached opposite conclusions on whether a compulsory retirement age could be justified.

Pitcher v Chancellor, Masters and Scholars of the University of Oxford, EA/2019/638 and EA/2020/128

Facts

The respondent, Oxford University, operated a contractual default retirement age until 2011, when the default retirement age provisions in the Equality Act 2010 were repealed. The University then operated an Employer Justified Retirement Age (EJRA), which at the time was 67. The aims of the EJRA were to promote inter-generational fairness and maintain opportunities for career progression, to facilitate succession planning and to promote equality and diversity. Extensions to the EJRA were only granted in exceptional circumstances, through an extension procedure.

St John’s College also adopted the EJRA. 

Two professors were compulsorily retired as a result of the EJRA. Professor Pitcher was an Associate Professor of English Literature at the University and an Official Fellow and Tutor at St John’s College. He was retired from both positions at age 67 by reason of the EJRA.  He had applied for an extension, which was rejected. He brought claims for direct age discrimination and unfair dismissal, both of which were dismissed by an employment tribunal.

Professor Ewart was an Associate Professor in Physics at the University.  He was initially successful in applying for an extension of the EJRA, but his application for a further extension was rejected and he was compulsorily retired. His claims for direct age discrimination and unfair dismissal were upheld by a different employment tribunal, which found the EJRA was not justified.

Professor Pitcher and the University both appealed to the EAT.

EAT decision

The EAT dismissed both appeals, upholding the findings of the original employment tribunals. The EAT held that when determining the question of objective justification, it is possible for tribunals to reach different conclusions on the same measure adopted by the same employer in relation to different individuals, in this case the EJRA. A different decision might be the result of differences in the way the evidence is presented.

In the case of Professor Ewart, the tribunal had the benefit of statistical evidence (prepared by Professor Ewart) showing that the EJRA did not create additional vacancies, which was one of the stated aims of the policy. This evidence was not available to the tribunal hearing Professor Pitcher’s case. In addition, each tribunal heard different evidence on the detriment suffered by those to whom the EJRA applied, meaning that they could place different weight on the mitigating factors relied on by the University. Specifically, each professor conducted different types of work and they were applying for an extension to the retirement age for different purposes.  Professor Pitcher’s extension application focused on his appointment with St John’s College, whereas Professor Ewart was seeking to continue working in a University role.

The EAT concluded that the EJRA was not of itself sufficient to achieve its three legitimate aims: promoting inter-generational fairness, facilitating succession planning and promoting equality and diversity.  The EJRA could, at most, support or facilitate other measures to promote or achieve those aims such as ensuring that the creation of vacancies was not delayed.  The EAT did acknowledge that creating vacancies was important for both the University and the college in order to seek to ensure inter-generational fairness, greater diversity and to assist the younger cohort in reaching their career aspirations.

The EAT conducted a detailed analysis of the evidence considered by each tribunal and the reasoning they had adopted, and concluded that there was no error of law in their respective conclusions on the question of whether the EJRA was objectively justified.

Consequences of this decision

At first sight, the fact that two different tribunals reached opposite conclusions on the question of whether the same compulsory retirement policy could be justified is problematic for employers; it suggests that an employer will not have any certainty over whether its policy is lawful. The EAT acknowledged in its judgment that this is an undesirable situation for employers.

However, the EAT’s decision highlights the importance of having evidence to show the impact of an employer’s retirement policy, and to consider the question of objective justification from the perspective of different employees carrying out different roles and functions.

This will be particularly important for employers in the education sector that are operating the same and/or a similar retirement policy. Those employers should not rely upon the impact of a retirement policy being obvious, and should consider how to measure the impact of the policy, and keep it under review in order to monitor whether the aims of the policy are achieved. Statistical evidence and case studies (or reasoned projections of the impact of the policy where statistical evidence is not available) will help employers demonstrate the achievement of their legitimate aims.  If it appears that a retirement policy is not achieving the desired aims, the employer should adapt the policy and continue to monitor it in order to be able to demonstrate the achievement of the aims the policy is seeking to achieve. 

Where a retirement policy has an extension procedure or another form of mitigation, it is important for employers to consider how that procedure impacts upon and/or interplays with the legitimate aims pursued by the employer. 

This decision provides helpful confirmation to employers that they may be able to rely on the legitimate aims of promoting inter-generational fairness, facilitating succession planning and promoting equality and diversity, in establishing a compulsory retirement age.  However, as set out above, employers will need to carefully draft and analyse any such policy to ensure that it actually achieves the legitimate aims that are sought and to ensure that there is a balance between those aims and the potentially discriminatory impact of the policy.