Compulsory retirement: the EAT upholds two opposing decisions

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Compulsory retirement: the EAT upholds two opposing decisions

In the recent case of Pitcher v Chancellor, Masters and Scholars of the University of Oxford [2021], the Employment Appeal Tribunal (EAT) upheld two opposing employment tribunal decisions.

The decisions concerned two Professors and an Employer Justified Retirement Age (“EJRA”) at the University of Oxford. The retirement age was 67. The aims of the EJRA were stated to include promoting inter-generational fairness and maintaining opportunities for career progression, facilitating succession planning, and promoting equality and diversity. Exceptions to the EJRA are allowed by way of an extension procedure. Extensions are granted only in exceptional circumstances, with limited scope for further extensions.

Professor Pitcher was an English Literature Professor who was compulsorily retired from his position at age 67, by virtue of the EJRA. He had applied for an extension, but this was refused. He therefore brought claims of direct age discrimination and unfair dismissal. These claims were dismissed by an employment tribunal, which found the EJRA to be justified and the dismissals fair.

Professor Pitcher appealed against the age discrimination and unfair dismissal decision to the Employment Appeal Tribunal (“EAT”).

Professor Ewart was a Physics Professor who had initially obtained an extension from the EJRA. Due to this, he vacated his substantive post and took up a fixed-term position. He applied for a second extension on the basis that the projects that had justified the first extension had been subject to unforeseen delays. However, this application was unsuccessful and he was compulsorily retired. He brought claims of direct age discrimination and unfair dismissal. Professor Ewart's claim was heard by a different employment tribunal to that which heard Professor Pitcher’s claim. Professor Ewart’s tribunal found that the University had not shown the EJRA to be justified.

The University appealed against the age discrimination decision to the EAT.

The EAT dismissed both appeals against the employment tribunal decisions.

The EAT held that the EJRA facilitated the achievement of the legitimate aims (inter-generational fairness, succession planning, and equality and diversity) by ensuring that the creation of vacancies was not delayed. The EAT also determined that the nature of the assessment undertaken by employment tribunals means that it can be possible for different tribunals to reach different conclusions when considering the same measure adopted by the same employer in respect of the same aims.

Whilst the EAT accepted that it is undesirable for an employer to be faced with conflicting tribunal decisions relating to a particular policy, they clarified that their task is not to strive to find a single answer, but to consider whether either tribunal erred in law.

The EAT noted that there were two material differences in the way that the evidence was presented to each tribunal:

1.      Professor Ewart’s tribunal had the benefit of statistical evidence (prepared by the Professor) on the impact of the EJRA upon the creation of vacancies.

2.      The tribunals had received different evidence on the detriment suffered by those affected by the EJRA and they were therefore entitled to give different weight to the mitigating factors relied upon.

The EAT conducted a detailed analysis of the evidence before the tribunals and the reasoning adopted by each and concluded that neither tribunal had erred in law.

Although the upholding of opposing decisions is less than ideal for employers who are seeking to justify their own compulsory retirement policy, this case demonstrates the vital importance that employers should place on evidence or, failing this, reasoned projections of the successfulness of a policy in achieving its legitimate aims.

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