The Employment Appeal Tribunal has handed down judgment in two conjoined appeals concerning age discrimination and unfair dismissal arising out of the Employer Justified Retirement Age (EJRA) at Oxford University and its constituent Colleges (Pitcher v (1) The Chancellor, Masters and Scholars of the University of Oxford (2) The President and Scholars of the College of St John the Baptist in the University of Oxford EA-2019-000638-RN and Ewart v The Chancellor, Masters and Scholars of the University of Oxford EA-2020-000128-RN). Old Square members, Oliver Segal QC, Nadia Motraghi and Madeline Stanley appeared on both sides in the Pitcher appeal.
Until 1 October 2011 Oxford University (like many other employers) had a default contractual retirement age. From 1 October 2011 these sorts of default retirement ages were no longer lawful. If an employer required an employee to retire at a particular age, that requirement constituted less favourable treatment on the basis of a protected characteristic (in breach of section 13(1) of the Equality Act 2010). Less favourable treatment on the basis of age can be justified (section 13(2) of the Equality Act 2010). The burden is on the employer to show that any such retirement age is a proportionate means of pursuing a legitimate aim.
Oxford University (“the University”) introduced an Employer’s Justified Retirement Age (“the EJRA”) requiring employees to retire at the age of 67. St John’s College adopted the same EJRA. Both employers designed and adopted procedures allowing for employees to make an application to work beyond the EJRA of 67.
Professor Pitcher was as associate professor of English Literature, and employed jointly by the University and St John’s College. Oxford University and St John’s College refused Professor Pitcher’s application for an extension to work beyond the EJRA. Professor Pitcher’s employment terminated when he reached the age of 67 in accordance with the EJRA.
Professor Pitcher brought age discrimination and unfair dismissal claims against both the University and St John’s College (his two employers). Following a lengthy hearing the claims were dismissed by the Reading Employment Tribunal on 16 May 2019.
The University and St John’s College accepted that the decision to terminate Professor Pitcher’s employment in line with the EJRA was less favourable treatment on the basis of age. The two employers argued that the EJRA was a proportionate means of pursuing legitimate aims. The legitimate aims relied on included promoting inter-generational fairness (ensuring there were opportunities for progression for younger academics), facilitating succession planning and promoting equality and diversity (the two employers argued that providing opportunities for younger academics was likely to increase diversity among the relevant staff groups).
The Tribunal accepted these aims were legitimate and that the EJRA was a proportionate means of pursuing these legitimate aims.
Professor Ewart was associate professor of Atomic and Laser Physics. The University granted Professor Ewart a two-year extension beyond the EJRA age of 67. Professor Ewart then applied for a second time to extend his employment for a further three years under the EJRA procedure. The University refused Professor Ewart’s application and his employment came to an end on 30 September 2017 (on the expiry of the original two-year extension period).
Professor Ewart brought claims of unfair dismissal and direct age discrimination in the Employment Tribunal. The University again accepted that Professor Ewart’s dismissal in line with the EJRA was less favourable treatment on the basis of age but said this treatment was justified as a proportionate means of pursuing legitimate aims. The University relied on very similar legitimate aims in the Ewart and Pitcher claims.
Professor Ewart’s case was heard by a different Employment Tribunal (a different judge and lay members). This Tribunal upheld Professor Ewart’s claims of unfair dismissal and direct discrimination. The Tribunal which heard Professor Pitcher’s case considered that the EJRA was not a proportionate means of pursuing legitimate aims.
Professor Pitcher appealed the dismissal of his claims to the EAT. The University appealed the decision by the Ewart Tribunal to uphold Professor Ewart’s direct discrimination claim. The EAT was faced with two conflicting decisions (by two different Tribunals) on the same (or very similar) EJRA policies operated by the same employer. The two appeals were joined.
The EAT (Eady J) declined to interfere with either Tribunal’s decision. The EAT’s task (the decision stressed) was not to “strive to find a single answer” (on the lawfulness or otherwise of the EJRA), but to consider whether either Employment Tribunal had erred in law. “An error of law would arise if the conclusion reached was perverse,” the EAT said, “but if it was otherwise open to that ET, on the evidence before it, the fact that another ET reached a different decision will not give the EAT jurisdiction to interfere.”
Oliver Segal QC appeared for Professor Pitcher instructed by Debenhams Ottaway Solicitors.
Please click here for the link to the judgment.