Opposing decisions regarding retirement age upheld by Employment Appeal Tribunal
Until 6 April 2011, employment law provided for a default retirement age (DRA) of 65 and retirement as a potentially fair reason for dismissal. Both were abolished ten years ago to ensure that no one was deprived of the chance to work simply because they had reached the age of 65.
Even though the DRA was abolished, employers can still operate with a fixed retirement age for compulsory retirement provided they are able to objectively justify it.
The Employment Appeal Tribunal (EAT) recently upheld two opposing decisions, from two different Tribunals regarding the University of Oxford’s mandatory retirement age, one of which found the age was objectively justified and the other which found it was not.
Both claimants were Associate Professors at the University. Mr Pitcher was compulsorily retired at the age of 67 on the basis of an “Employer Justified Retirement Age” (EJRA) of 67. He applied under the extension provisions to delay his retirement but was unsuccessful. His claims for direct age discrimination and unfair dismissal were dismissed on the basis that the EJRA was justified and the dismissal fair. Mr Ewart had the same EJRA applied to him. He obtained an extension and vacated his substantive post in favour of a fixed-term one. When he later applied for a further extension, he was unsuccessful and was compulsorily retired. A different Tribunal found that he had been unfairly dismissed and directly discriminated against because of his age due to the EJRA not being justified. Both cases were appealed to the EAT.
The EAT found that the University had legitimate aims for the EJRA of inter-generational fairness, succession planning and equality and diversity and that it facilitated measures which achieved these aims. In simple terms, it enabled them to recruit for such roles in a timely fashion from a younger and more diverse cohort.
The EAT acknowledged the lack of evidence of this in Mr Pitcher’s case but also noted that the EJRA was quite new. It accepted evidence from a survey of retirees who said that they would have continued to work for a further three years had the EJRA not been in place. Therefore, it was not perverse for the Tribunal to have found that, in the absence of the EJRA, the turnover would have been much lower. The EAT found that the Tribunal had had proper regard for the mitigating factors such as the extension procedure and post-retirement opportunities for senior academics.
In Mr Ewart’s case, the EAT found that, on the basis of statistical evidence which showed the EJRA only created 2 to 4% of vacancies, the Tribunal was entitled to find that the EJRA did not contribute to the University achieving its legitimate aims. Furthermore, it was held that it was entitled to find that the impact was severe and the extension procedure did not mitigate this. This case focused more on the rules governing the second extension which were so restrictive they did not contribute to the legitimate aims attributed to the EJRA.
The EAT explained that although the two Tribunals reached different decisions about proportionality, neither had erred in law.
The way that these cases were presented and the evidence upon which they relied differed. One claim provided statistical evidence to show the impact of the EJRA on vacancies and there was a difference in the evidence on the detriment suffered by those to whom the EJRA applied (and how any ongoing work may mitigate this).
- It is more common for employers to operate without a minimum retirement age and for employees, rather than employers, to dictate the age at which they retire due to the risks of an age discrimination claim.
- These cases from the same employer with the same EJRA demonstrate the importance on the outcome of the case how a case is pleaded and the evidence that is put before the Tribunal. These cases show the tactical advantage getting this right at the outset can provide.
- This is the nature of the proportionality assessment – two Tribunals can consider the same measure, adopted by the same employer, in relation to the same aims and come to different conclusions. It was not for the EAT to come to a single decision but rather to determine if the decisions were legally wrong from the Tribunal below it.
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