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Justifying Compulsory Retirement – Academics v Oxford University: Round 3

<!-- wp:paragraph --> <p>In September 2021, Eady J in the EAT upheld two employment tribunal decisions that had reached opposite conclusions on the lawfulness of Oxford University’s compulsory retirement policy: <strong>Pitcher v Oxford University,</strong> which Oxford won, and the slightly later case of <strong>Ewart v Oxford University, </strong>which it lost: [2022] ICR 338. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Compulsory retirement is an act of direct age discrimination and the issue in such cases is whether an employer, the burden being upon it, can justify it by reference to legitimate aims which must, according to the Supreme Court in <strong>Seldon v Clarkson, Wright &amp; Jakes</strong> [2012] ICR 716, be of a social policy nature. The two tribunals had reached different conclusions on whether the compulsory retirement scheme was a proportionate means of achieving a number of legitimate aims.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Rather than abandon the policy or appeal to the Court of Appeal, Oxford retained the so-called Employer Justified Retirement Age (“EJRA”) policy, tweaked it in a number of ways (e.g. reduced its scope, increased the retirement age from 67 to 68) and went about gathering further &nbsp;evidence to support it, some of which was seemingly designed to meet the criticisms articulated by the <strong>Ewart</strong> Tribunal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Unsurprisingly, a further challenge to the policy made its way to the employment tribunal in <strong>Field-Johnson and others v Oxford University </strong>Case No3301882/2020 and others. Three of the claimants were academics, one was a senior administrator. By the time of the hearing, Oxford had a carried out a detailed 10-year review of the policy which had been introduced in 2011.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The creation of vacancies is generally at the heart of compulsory retirement policies.  It is through the creation of additional vacancies that social policy aims, such as increasing diversity or furthering intergenerational fairness, commonly relied upon aims, can be pursued. The key finding in <strong>Ewart</strong> though was that the University had not shown that compulsory retirement had anything other than a trivial impact on the vacancy creation rate.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Most vacancies arose for other reasons, many chose to retire at or before EJRA age in any event and of those that would stay, evidence suggested they would only stay for a limited period. The result was that the vast majority of vacancies would likely exist in any event, meaning the discriminatory EJRA was having only a very modest contribution, at best, on the achievement of Oxford’s aims.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <strong>Field-Johnson</strong>, Oxford argued that the new evidence it adduced ought to lead to a different conclusion. It relied on Little’s Law of Queueing – which had been applied in the US in similar circumstances -  to model the rate at which vacancies were likely to arise as a result of different (and no) retirement ages, as well as its own analysis of the impact of the policy year on year. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It contended this showed the EJRA significantly enhanced the number of vacancies, giving it the opportunity to use those vacancies to make progress towards achieving its aims, such as increasing diversity, creating opportunities for the next generation and helping it with succession planning.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It also led evidence designed to show that the discriminatory impact of the policy was not as significant as it might appear, as retirement was cushioned both by generous pension provision (more generous than the current generation will receive, a point relevant to intergenerational fairness) and the ability of academics to stay on in an emeritus capacity post retirement.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Tribunal however concluded, as it had in <strong>Ewart</strong>, that the University had not justified the policy: it was not a proportionate means of achieving legitimate aims. The University has since conceded the claims of direct age discrimination arising out of the enforced retirements.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>By the time of the hearing, the University had already decided to remove administrators, such as Mr Field-Johnson, from the scope of the EJRA because there was insufficient evidence it was efficacious. His task was therefore a little easier. The policy remained in place for various academic grades however, two of the three academic claimants were statutory professors (the highest academic grade) and one was a reader. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Tribunal concluded that the modelling relied upon by Oxford rested on questionable assumptions and  showed <em>at best</em> that only up to 8% of vacancies at the statutory professor grade were attributable to the EJRA, though the figure was likely to be lower than that. The figure was even lower for the grades below statutory professor. These figures were said to be “small”.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On the other side of the scales, the Tribunal concluded the qualitative discriminatory impact of the policy was great. This was so even though retired academics could often stay on and continue making use of some of the University’s facilities and take part in&nbsp; aspects of college life. Further, &nbsp;the fact the policy may only have a small quantitative effect did not prevent a finding that the EJRA caused a significant and substantial discriminatory impact.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Overall, it was not satisfied the EJRA was reasonably necessary for Oxford to achieve its aims. It was having a “trivial” impact and that impact was outweighed by its highly discriminative effect. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In reaching those conclusions, the judgment contains much that may be helpful to other employers considering introducing or retaining compulsory retirement schemes:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The fact the burden falls on an employer to justify such a policy is critical. That cannot be done by assertion or guesswork, cogent evidence will be needed. Where a policy has been operated for some time, an employer ought to be monitoring it, collecting data and periodically reviewing it. Justification is an on-going process;</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The Tribunal was critical of Oxford for failing to keep <em>contemporaneous records</em> to evidence the effect of the EJRA. It could have done so by eliciting information in exit interviews to determine why people were leaving when they did and when they might otherwise have left if their departure was EJRA related. Instead, it had to rely on surveys after the event of those that had already retired and could be bothered to respond. These surveys were unreliable because the samples were small and self-selecting. The Tribunal concluded that the mathematical analysis Oxford had adopted could only ever be second best to information elicited in exit interviews;</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Oxford had relied on diversity data to illustrate the positive progress it had made. However, its case on this was significantly weakened by any lack of reliable statistics relating to protected characteristics other than sex. In any event, the Claimants’ case was that progress towards improving gender diversity was slow and did not compare favourably with progress at other Russell Group universities, none of which operated compulsory retirement schemes;</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The Tribunal held that Oxford had not properly considered alternatives to the EJRA, dismissing options that had been canvassed too readily and without proper reasoning. This was despite the fact its 10-year Review Group had devoted time in a number of meetings specifically to considering alternatives having received oral and written evidence, which is likely to be more than many employers manage. This perhaps illustrates the difficulties employers have in meeting the test for justification, given the burden is on them and the test involves a consideration of whether aims could be achieved via less discriminatory means.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The Tribunal did not think that Oxford could rely on its own convoluted internal procedures to justify what would otherwise be direct age discrimination: a warning to employers thinking of arguing that their internal recruitment processes contribute to the difficulty of securing replacements timeously where vacancies arise with limited notice.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Whether Oxford will now abandon the policy or retain it and wait for the next challenge, in the hope that a different tribunal will reach a different decision, remains to be seen. That is clearly a possibility in light of the EAT’s conclusion in <strong>Pitcher and Ewart</strong> that there is no legally correct answer to the question of justification in all cases, it is a matter for a tribunal based on the evidence it hears. That sits uneasily with legal certainty. For the time being, the policy remains in place and each year, a new tranche of academics are forced to retire, some before they would wish to do so. Unless the policy is abandoned, “Round 4” seems inevitable.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>These series of judgments do not mean compulsory retirement can never be justified. It will depend on the evidence adduced by the particular employer in the particular sector in which they operate. Oxford is a large, somewhat unique, employer and the position may be very different for a small employer with scarce opportunities available for promotion. The <strong>Ewart</strong> and <strong>Field-Johnson</strong> judgments do however illustrate the difficulties of justifying such schemes and the lengths to which an employer is likely to have to go in order to do so.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Andrew Sugarman represented the academic claimants in <strong>Field-Johnson</strong>, and Professor Ewart in the ET and EAT in <strong>Pitcher and Ewart</strong>.</em></p> <!-- /wp:paragraph -->

Judges discriminated against by the MoJ

<!-- wp:paragraph {"align":"left","fontSize":"medium"} --> <p class="has-text-align-left has-medium-font-size"><strong>Southby and others v Ministry of Justice, November 2022</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A group of part-time fee-paid judges of the Special Educational Needs and Disability Tribunal (“SEND”) have succeeded in their part-time worker discrimination claims against the Ministry of Justice.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-sugarman">Andrew Sugarman</a> represented the judges who claimed they were treated less favourably than their full-time colleagues because they were not paid for preparation time or for the time spent writing up decisions following hearings, in contravention of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>SEND forms one half of the Health, Education and Social Care Chamber of the First-tier Tribunal (the other being the Mental Health Tribunal). It is currently home to 13 full-time salaried judges but has also been heavily reliant on fee-paid judges to service the increasing workload over recent years. There are currently over 110 fee-paid part-time SEND judges.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Despite being presented with a bundle of around 10,000 pages, circa 250 pages of witness evidence and hearing 5 days of evidence, Employment Judge Williams pithily summed up the essence of his conclusion: part-time fee-paid judges must do 1½ days’ work in order to receive a day’s pay, whereas their full-time salaried colleagues get a day’s pay for a day’s work. That constitutes less favourable treatment, and he had no difficulty in concluding part-time status was the reason for it.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>He also rejected the MoJ’s attempts to objectively justify the treatment. It advanced various aims and relied on the budgetary implications of having to pay fee-paid judges significantly more for past and future sittings, and the potential consequences of the same for managing the jurisdiction. The financial consequences will no doubt be significant. Some fee-paid judges have been sitting in SEND for many years – one of the Claimants began sitting in 1999 – and there are nearly 10 times as many fee-paid judges as there are salaried.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The fair allocation of resources was accepted as a legitimate aim but the Tribunal was “unable to accept that requiring fee-paid judges in SEND to work unpaid hours on non-sitting days in order to complete their cases is consistent with, or a means to achieve, a fair allocation of resources”. Further, “it is almost inevitable that paying a judge to do work which was formerly unpaid may have budgetary consequences…. the respondent must decide how it allocates its available resources but it must do so in a non-discriminatory way”.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Pay in the First-tier Tribunal is currently subject to a review, so from the Claimant’s perspective this judgment is timely. Whatever new system is devised, it will have to be one that ensures equal treatment of fee-paid judges with their full-time salaried colleagues. For many years, the SEND jurisdiction appears to have run on the goodwill of part-timers to get the work done, despite not being paid for significant amounts of it in the same way as salaried colleagues. That would not be acceptable in other walks of life and it ought not to be required of the judiciary either.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-sugarman/">Andrew Sugarman</a> is Joint Head of the <a href="https://www.parklaneplowden.co.uk/expertise/employment-barristers/">Employment Team</a> at Parklane Plowden.</p> <!-- /wp:paragraph -->

Relevant Considerations in a s15 Equality Act 2010 Claim

<!-- wp:paragraph --> <p><strong>Written by </strong><a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-sugarman/" target="_blank" rel="noreferrer noopener">Andrew Sugarman</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-watson/" target="_blank" rel="noreferrer noopener">Sophie Watson</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>Department for Work and Pensions v Boyers</em> [2022] EAT 76</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The EAT found that the dismissal procedure was a relevant factor in assessing proportionality in claims for discrimination arising out of a disability.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background Facts</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant was employed by the Department for Work and Pensions.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>She was disabled due to chronic migraines and anxiety.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant felt she was being harassed and bullied by a colleague which caused her stress and increased the frequency of her migraines. She requested on several occasions to move away from the colleague. However, the Respondent refused her requests.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In 2017 the Claimant was absent for a year due to sickness, save for a short period when she undertook a trial period in an alternative role, in a different location. The Respondent deemed the trial unsuccessful.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In January 2018 the claimant was dismissed. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant brought various complaints, including one for discrimination arising from disability under s15 of the Equality Act 2010.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>First Instance Decision</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Respondent submitted its legitimate aims for the purposes of s15(1)(b) were: 1) protecting scarce public funds/resources and 2) reducing strain on other employees resulting from the Claimant’s absence.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The ET accepted these aims were legitimate. However, it concluded the Respondent had not acted proportionately in dismissing the Claimant. It found more could have been done to assist the Claimant back to work. In particular, it considered the manner in which the work trial was conducted was flawed, as was the procedure that led to dismissal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant therefore succeeded in her s15 claim and in addition her unfair dismissal claim.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>First Appeal</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Respondent appealed against the s15 finding on the basis the ET had not properly balanced the discriminatory impact on the Claimant with the aims of the Respondent. It argued the ET had solely focused on the process leading to dismissal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The EAT upheld the appeal. It found the ET had focused on the process by which the Respondent came to dismiss and the actions and thought processes of the Respondent’s managers, rather than objectively assessing the needs of the Respondent in the context of its legitimate aims. The case was remitted to the ET to reconsider proportionality.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>ET’s second judgment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The ET conducted the balancing exercise again and reached the same conclusion as it had previously.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It again factored the dismissal procedure into its findings. In particular, it did not consider it reasonably necessary to move to dismissal at the time the Respondent did.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Appeal against ET’s second judgment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>By the time of the appeal, there were 3 live grounds of appeal:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>Grounds 1 and 3 – the ET erred when considering proportionality by factoring in the procedure leading to the Claimant’s dismissal. The Respondent submitted the focus should have solely been on the outcome.</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>Ground 2 – the ET, in the absence of a separate claim for failure to make reasonable adjustments relating to the Claimant’s place of work, had wrongly imported such a duty in finding that it ought to have investigated deploying the &nbsp;&nbsp;Claimant to different duties in a different workplace, given she refused to return to her contracted workplace. It argued the ET should have limited itself to consideration of the Claimant’s <em>contracted</em> duties and place of work.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Judgment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>With regard to grounds 1 and 3 the EAT concluded, whilst the focus should be on whether the outcome – dismissal – is justified outcome, it remained open to the ET to weigh in the balance the procedure by which that outcome was achieved.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It also concluded that it would be more difficult for the Respondent to show that it acted proportionately if:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>the Respondent adduces no evidence on how its decision makers thought their actions would in fact serve legitimate aims relied upon;</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>it adduces no evidence on how, as part of the process culminating in dismissal its decision makers considered other, less discriminatory, alternatives to dismissal.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The EAT determined that, without properly evaluating the work trial the Claimant underwent at the different workplace to decide whether it was successful or not, the Respondent could not show that dismissal was appropriate or reasonably necessary.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In respect of ground 2, the EAT found that it would seriously undermine the protection afforded to disabled people in s15 if the assessment of proportionality could not extend beyond terms of contract. It is right that a prior failure to comply with the duty to make reasonable adjustments may be material to the question of whether a dismissal is disproportionate (as it was <strong>City of York Council v Grosset</strong>). However, it does not follow that the converse is true; that no dismissal can be disproportionate where no reasonable adjustment can be made.&nbsp; &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Boyers – a decision of the President of Employment Tribunals in England and Wales - &nbsp;provides a useful reminder that there is perhaps more of an overlap between unfair dismissal law and discrimination law than might first be assumed. Whilst the focus must be ultimately be on whether the discriminatory act which is pleaded is justified or not, and thus the focus must be on the outcome, matters of procedure can also be relevant to a s15 claim, not just an unfair dismissal claim.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The case is also helpful to those assisting respondents prepare their claims. There were important evidential gaps in this case which made it difficult to show dismissal was proportionate. Witnesses ought to deal with how and why they concluded the legitimate aims were furthered by the measure in question. They should also deal with what consideration they gave to alternative less discriminatory measures and explain why they were not adopted.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Authors</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-sugarman/" target="_blank" rel="noreferrer noopener">Andrew Sugarman</a> is a leading employment barrister. <a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-watson/" target="_blank" rel="noreferrer noopener">Sophie Watson</a> is a pupil barrister currently undertaking a pupillage with Parklane Plowden Chambers. She is now accepting instructions.</p> <!-- /wp:paragraph -->