Age discrimination: compulsory retirement age

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contractual default retirement age until 2011, when the default retirement age provisions in the Equality Act 2010 were repealed.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 respondent 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.

Two professors were compulsorily retired as a result of the EJRA. Professor Pitcher 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 initially successful in applying for an extension, 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 has 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 showing that the EJRA did not create additional vacancies, which was one of the 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.

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. Employers should consider how they will measure the impact of such a retirement policy and how to adapt the policy if the desired aims are not achieved.

The decision confirms that employers 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. 

These articles are from the October 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact a member of Birketts’ Employment Team.