The case of Pitcher v University of Oxford & Anor concerned the operation of the University of Oxford's Employer Justified Retirement Age ("EJRA"). Professor Pitcher had unsuccessfully claimed direct age discrimination and unfair dismissal when he was compulsorily retired at the age of 67. He appealed to the EAT. A second case was then brought by Professor Ewart, who also faced compulsory retirement under the EJRA. Professor Ewart however was successful before the employment tribunal in his claims for direct discrimination and unfair dismissal. The University appealed and both appeals were heard together by the EAT. Striking a blow for legal certainty, the EAT dismissed both appeals, leaving Oxford University with anEJRA policy that had been found to have been discriminatory in one case but not the other.
Unlike all other forms of direct discrimination, direct age discrimination can be justified. Currently if an employer is to enforce a compulsory retirement age it must be objectively justifiable. In these cases that meant the enforcement of the retirement age must meet a legitimate aim and be a proportionate way of achieving that aim. It was common ground before the EAT that the legitimate aims the University were intending to achieve were (1) intergenerational fairness; (2) succession planning; and (3) equality and diversity. The University argued that enforcement of the compulsory retirement age was a proportionate way of meeting these legitimate aims.
The reason two contradictory findings were made by different tribunals as to whether the EJRA was discriminatory comes down to the assessment of proportionality in each case. When Professor Pitcher's claim was heard by the employment tribunal the EJRA was relatively new. Oxford University argued that although there was little evidence to demonstrate the EJRA was effective in meeting the legitimate aims such evidence could not be expected when the policy was in its infancy. The employment tribunal accepted that and found the application of the EJRA to be justified.
By the time Professor Ewart's claim was heard by a different tribunal statistical analysis of the effect of the EJRA on the vacancy creation rate was available, as was evidence about diversity trends at other Universities, of which only one other had adopted an EJRA. Additionally, Professor Ewart was a research scientist dependent on a project team and facilities whereas Professor Pitcher could work more autonomously. On the back of his evidence Professor Ewart was able to show that the EJRA only had a marginal impact on the rate at which vacancies arose, but had a significant discriminatory impact on those forced out of their jobs. The tribunal concluded that the trivial impact of the EJRA could not outweigh the discriminatory toll of the policy, and Professor Ewart's claims therefore succeeded.
The EAT do not rehear the merits of cases on appeal from the employment tribunal. Rather they will examine whether or not the employment tribunal has erred in applying the law. In both cases the EAT held the employment tribunals had, on the evidence before each of them, been entitled to reach the conclusions they had, and accordingly both appeals were dismissed. Although the claims related to the same EJRA, there were differences in the evidence available to each tribunal and the circumstances of each claimant.
These cases demonstrate the importance of good analytic data when considering proportionality. It is also a reminder that proportionality is fact sensitive and as such employers need to consider the application of policies to employees on an individual basis. It also demonstrates the need for employers to review, at regular intervals, the effectiveness of compulsory retirement polices to check the original stated aims are being met. If it is found aims are not being met consideration should be given to either changing or possibly withdrawing the policy.
