Age discrimination is now such an accepted part of our equality framework that the idea that someone has to stop work because they hit a particular age seems quite odd. However, those of us who remember the introduction of age as a protected characteristic in the workplace in 2006 realise what a huge shift this is in mental attitudes. Unlike the previous “new” protected characteristics of sexual orientation and religious belief in 2003, which broadly followed public opinion, discrimination on the basis of age was not really considered discrimination or “bad” at all – it was just the way the world worked.
For something which was so widespread and culturally acceptable, I am always struck by how little caselaw there is on this issue. Either age discrimination is not as rife as we thought – or people just aren’t complaining and accept (or embrace!) things like fixed retirement ages where they still exist. Not so at the University of Oxford, where the University made a case some years ago for a fixed (Employer Justified) retirement age. This was challenged in the Employment Tribunals twice with two completely different outcomes. The EAT has now heard appeals against both cases and has given us some helpful guidance along the way.
In Pitcher v (1) The Chancellor, Masters and Scholars of the University of Oxford and another, the Employment Appeal Tribunal (EAT) considered two age discrimination and unfair dismissal Employment Tribunal (ET) cases concerning Oxford University’s Employers Justified Retirement Age (EJRA) which requires employees to retire at 67. The EAT upheld both ET decisions, one having found that the EJRA was objectively justified, and the other having found that it was not.
The EJRA constitutes less favourable treatment (requiring someone to stop working) because of a protected characteristic (age) and is therefore direct age discrimination unless it can be objectively justified. The exception to the rule for age that direct discrimination cannot be justified means that the less favourable treatment will not be discriminatory if the employer can show it is a proportionate means of achieving a legitimate aim.
The cases centred around whether the EJRA was a proportionate means of achieving a legitimate aim. In both cases, the University (and, in Professor Pitcher’s case, St John’s College which was his joint employer and which also implemented the EJRA) argued that the EJRA was a proportionate means of achieving the following aims:
- Inter-generational fairness
- Succession planning
- Equality and diversity
They argued that the EJRA facilitates other measures in achieving those aims by ensuring vacancy creation was not delayed and a younger and more diverse cohort might be recruited into senior academic roles.
The facts of the cases were as follows:
Professor Pitcher was a Professor of English Literature and a fellow and tutor at St John's College. His application under the EJRA’s extension provisions to continue to work beyond 67 was refused and he was compulsorily retired at 67. He brought claims of direct age discrimination and unfair dismissal, both of which the ET dismissed. It found that whilst the decision to terminate the employment was less favourable treatment on the basis of age, the employers were justified in implementing the EJRA as it constituted a proportionate means of achieving the legitimate aims listed above and the dismissal was fair.
Professor Ewart was a Professor in Atomic and Laser Physics. He had been granted a two-year extension beyond the EJRA and applied for a second time to extend this, but the University refused the application. He brought claims of direct age discrimination and unfair dismissal. A different ET to the one which heard Professor Pitcher's claim found that the EJRA was not a proportionate means of pursuing the legitimate aims and upheld Professor Ewart’s claims.
So which decision was correct?
Professor Pitcher appealed the decision, as did the University in respect of Professor Ewart's claim, and the EAT considered the two decisions together. Perhaps surprisingly, it upheld both decisions. In doing so, it emphasised that the EAT's task "was not to strive to find a single answer, but to consider whether a particular decision was wrong in law." An error in law would arise "if the conclusion reached was perverse". The EAT found that neither ET had erred in law:
- In Professor Pitcher's case, there was limited evidence to demonstrate the impact of the EJRA, but the ET had acknowledged that this was because the EJRA was relatively new. It considered evidence from a survey regarding those professors who could have continued in employment were it not for the EJRA (a quarter said they would have continued for a further three years) and found that the EJRA’s extension provisions and the post-retirement opportunities available for senior academics mitigated the discriminatory impact of the EJRA.
- By contrast, the evidence available in Professor Ewart's case included statistical analysis demonstrating that the rate of vacancies created by the EJRA was trivial (two to four per cent). The University's evidence did not show that the EJRA's effectiveness was sufficient to outweigh its severe discriminatory impact. The ET also found that the extension provisions and the post-retirement opportunities did not mitigate the EJRA’s discriminatory impact sufficiently.
In both cases, the EAT concluded that the decisions the ETs reached were available to them on the facts and they had acted wtihin the band of reasonable responses. The nature of the proportionality assessment meant 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. (Incidentally, this nicely shows why lawyers find it so hard to give their clients percentage chances of prospects of success in litigation, particularly where there is a “range of reasonable responses” test).
Apart from the fact that litigation is inherently unpredictable, employers can take some key things away from the EAT's judgment:
- One size does not fit all when it comes to compulsory retirement policies. The ETs were correct to analyse the individual facts and evidence available in each case – even when dealing with effectively the same underlying policy - and to come to conclusions based on them.
- Employers who are considering imposing a compulsory retirement age need to ensure that they have a strong enough justification for doing so, and that the discriminatory impact of the policy does not outweigh the benefits of the justification.
- The EAT commented that evidence will be hard to come by when a scheme such as the EJRA is relatively new and ETs should not require evidence which an employer can't be reasonably expected to produce. Employers should take reassurance from this – at least in the early years of any such scheme.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, October 2021