In the summer of 2019, in what seems like a different era, Professor Paul Ewart, a Professor of Atomic and Laser Physics at Oxford University, represented by Andrew Sugarman, succeeded before an Employment Tribunal in his claims of age discrimination and unfair dismissal following his compulsory retirement under Oxford’s “Employer Justified Retirement Age” (“EJRA”). The case had been listed for trial in the summer of 2018 but was vacated at the last minute as there was no judge to hear
“To retire or not to retire, that is the question….” Oxford Shakespearean scholar Professor John Pitcher was similarly not given the luxury of answering. Whilst Professor Ewart was waiting for his case to be heard, Professor Pitcher nipped into the queue ahead of him and got his challenge to the EJRA in first.
Compulsory retirement provisions are directly discriminatory on the grounds of age. Unlike other forms of direct discrimination, direct age discrimination can be justified under s13(2) of the Equality Act 2010 if the employer can show its measure is a proportionate means of achieving legitimate aims. Oxford relied inter alia on legitimate aims of intergenerational fairness, succession planning and improving equality and diversity.
Professor Pitcher lost his case. An ET found the aims were legitimate and policy was justified. Although there was limited evidence demonstrating that the policy was effective in achieving the University’s aims, the ET accepted Oxford’s argument that the policy was relatively new and such evidence could not always be expected.
The Ewart Tribunal had the benefit of the reasoning in Pitcher when it deliberated. It also had the benefit of different evidence, in particular a statistical analysis about the effect of the EJRA on the vacancy creation rate, as well as evidence about diversity trends at other Russell Group Universities, none of whom (apart from Cambridge) had adopted compulsory retirement provisions. Professor Ewart advanced evidence and argument to show that the EJRA could only improve the vacancy creation rate by something in the order of 2-4% and that, unsurprisingly, diversity at Oxford was not materially improving when compared to those other institutions.
The impact on the vacancy creation rate was important because it was the University’s case that the legitimate aims it relied upon were achieved through the creation of more frequent vacancies. Professor Ewart’s firmly held view was (and is) that the EJRA makes only a marginal impact to the rate at which vacancies arise yet comes with a heavy discriminatory toll on those forced out of their jobs at a time not of their choosing.
Despite the finding in Pitcher, the Ewart Tribunal agreed with his arguments, finding that there was no evidence the EJRA was having anything other than a “trivial” impact on the vacancy creation rate, an impact which could not outweigh the heavy discriminatory impact of the policy. Therefore, Oxford had not justified it’s policy.
Appeals in both cases were heard together at the EAT. Resisting the temptation to harmonise the results in the two cases, the EAT (Eady J) dismissed both appeals, finding that each ET had been entitled to come to the decision it did on the evidence and submissions it heard. The nature of the proportionality assessment under s13(2) Act is such, held the EAT, that it is possible for different tribunals to reach different conclusions when considering the same measure adopted by the same employer in respect of the same aims, even where the evidence adduced is the same.
However, the EAT thought there were material differences between the evidence and argument presented in the two cases [see §185 – 186], namely
The outcome does not do a lot for legal certainty. It is a shame the two cases were not heard together at first instance. That said, there is much helpful analysis of the case law relevant to compulsory retirement schemes in the EAT’s judgment that employers will no doubt wish to consider when analysing schemes, or proposed schemes, of their own.
Professor Ewart is hopeful that Oxford will now abandon a policy he continues to regard as discriminatory. In light of the fact his tribunal had the benefit of the Pitcher judgment and additional evidence about the efficacy of the EJRA in creating vacancies that was not available to the Pitcher ET, he believes the reasoning adopted ought to prevail in future cases, if there are any. Oxford is in the process of carrying out a major 10 year review of the EJRA. It will be interesting to see what the outcome of that process is.
The Employment Appeal Tribunal Judgment can be found here.
Some initial press coverage can be found here.