Oxford University has an Employer Justified Retirement Age (EJRA) policy. The broad justification for the EJRA is based on three 'legitimate aims':
The policy requires all employees at grade 8 or higher to retire before their 69th birthday.
In June 2014, Professor Pitcher was notified that his retirement date would be 30 September 2016, in line with the EJRA. He requested to work beyond this date, and this request was denied. He brought direct discrimination and victimisation claims in the tribunal.
Separately, in 2014, Professor Ewart was granted a two-year work extension until he was 69. He later applied for a second extension which was rejected, and in September 2017 Professor Ewart was forced to retire in line with the EJRA. He brought unfair dismissal and age discrimination claims in the tribunal.
The ET in Professor Pitcher’s case dismissed his claims of direct age discrimination and unfair dismissal, finding that the EJRA was justified and the dismissals fair. A different employment tribunal (ET) in Professor Ewart’s case upheld his claims of direct age discrimination and unfair dismissal, finding that the University had not shown the EJRA to be justified.
Both claims were appealed in the EAT, which considered the two appeals together.
In the context of age discrimination, an employer would not discriminate against an employee if they could show their treatment was objectively justified because it was 'a proportionate means of achieving a legitimate aim'.
This means that the EAT would have to decide whether or not the University's aims for the EJRA policy were legitimate and, if so, whether the policy was a proportionate way to achieve those aims in each case. That latter question requires a weighing up of the gravity of the effect of the policy on the employees disadvantaged by it against the importance of the legitimate aims.
In both cases, the EAT held that the policy did facilitate the aims by not delaying the creation of vacancies, thereby a younger, more diverse cohort of candidates could be considered for senior academic roles.
However, the EAT rejected both appeals and upheld the opposite outcomes that had been reached by each tribunal, affirming that Professor Pitcher's compulsory retirement was justified and a fair dismissal, but Professor Ewart's dismissal was discriminatory.
The EAT acknowledged that it was undesirable for an employer to be faced with what appeared to be conflicting ET decisions relating to a particular policy but stressed that the nature of the assessment of whether a policy is objectively justified is always specific to the facts and evidence before the tribunal, such that it is possible for different ETs to reach different conclusions when considering the same measure adopted by the same employer in respect of the same aims.
In these cases, Professor Ewart had conducted statistical analysis that enabled him to persuade the ET that the EJRA policy appeared to create no more than approximately 2-4% more vacancies than if had not existed. This evidence had not been put to Professor Pitcher's Tribunal, allowing it to come to a different conclusion.
Contractual retirement ages remain rare in the Higher Education sector, with only one other University still maintaining one. The decision confirms some of the legitimate aims that may be relied upon by employers when justifying a compulsory retirement policy are:
Further, as the evidential burden is on the employer, an employer should not safely assume that the impact of their policy is clear and obvious. Therefore, employers should take the following steps: