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Those of you who have more than one child may often wonder how siblings with the same genes and same family can be so different; surely, they should be the same? I imagine the vice-chancellor and their colleagues at the University of Oxford have been going through similar thought processes.
Two cases*, each disputing the university’s justified retirement age, each bought by white, male professors pushing 70 years old but prompting diametrically opposed tribunal decisions. In one the dismissal was fair, and the retirement age justified, in the other an unfair dismissal and discriminatory retirement age. Both cases were joined in an appeal at the Employment Appeal Tribunal (EAT). The judgment however upheld these two different outcomes. The employer’s justified retirement age (EJRA) was lawful in Professor P’s case but not in Professor E’s.
Compulsory retirement ages
Since the repeal of the default retirement age (DRA) back in 2011, an employer can operate a compulsory retirement age provided that it can be objectively justified as a proportionate means of achieving a legitimate aim. Subsequent case law clarified this. Any objective justification must refer to an aim of public interest consistent with social policy aims, such as ‘inter-generational fairness’ and ‘dignity’.
A tale of two professors
Following the repeal of the DRA, the University of Oxford introduced an EJRA of 67 years. Their objective justification was that it provided intergenerational fairness and maintained an opportunity for career progression for all staff. There was an exceptions clause and those nearing retirement could apply to work beyond 67. Professor P, on celebrating his 67th birthday was dismissed from both the college he was a part of and the university. He claimed that his dismissal on these grounds was unfair. The tribunal, however, disagreed and held that the dismissal was fair and the university’s EJRA objectively justified. Professor E, upon reaching 67, applied for an exception and was kept on in a fixed-term position. When that finished, his further application for an exception was denied and he was dismissed. Like Professor P he bought a claim to tribunal, however, unlike his colleague the tribunal found that his dismissal was unfair and the EJRA not objectively justified. Both cases were appealed and heard in a joint hearing by the EAT.
Employment Appeal Tribunal decision – the Wisdom of Solomon?
The EAT looked closely at the two opposing decisions, and ruled that within neither had the tribunal erred in law whilst making their conclusions; each was entitled to make these decisions despite the similarities of the cases. Based on the evidence placed before them, the EAT noted the following:
- In Professor P’s case, the EJRA, including its extension, provided a degree of predictability for the university in terms of movement of staff that could not be secured by any other means and hence was justified.
- Conversely, in Professor E’s claim, the university failed to provide any data or reasoned projections supporting their case that the EJRA was objectively justified because it substantially impacted vacancy creation.
Whilst the two cases, in their sheer unpredictability, might convince many organisations to run as fast as they can away from compulsory retirement ages, for others they are a necessary tool to ensure job creation and career progression. Crucially they can also play a part in diversity and inclusivity. More senior management roles are still statistically more likely to be taken by white male employees. Having a mechanism whereby these roles are released for recruitment means that organisations can seek to broaden the diversity at that level.
Here are some points to think about following this EAT case, if you have or are considering an EJRA:
- The courts are clear that any argument for objective justification must rely on public policy. How will the EJRA impact on promoting intergenerational fairness, workforce planning etc? and crucially how can you evidence that? In Professor E’s case the University had failed to produce sufficient evidence to show that the EJRA could be objectively justified - might it have been decided differently with better evidence?
- There is no 'safe age' for retirement – the EJRA can be challenged whatever the age set therefore always be able to justify the age that is being set.
- Is there a less discriminatory way of achieving job creation and career progression? Could performance management techniques be used to address issues when the issue relates to performance?
- If an EJRA is disputed, justification for applying it to that employee will be required. Justifying it in one case, as the University of Oxford had done, does not necessarily mean it will be justified in another.
*(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)
For more information
Please do contact any member of the team for further advice on EJRA. If your query relates to any pensions aspect of these dismissals do contact Doug Mullen.
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