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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:
Learning points
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:
*(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)
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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In this podcast, Puja Desai interviews Kimberley Foster and discusses her experience with counselling. This is a really helpful podcast for anyone who has thought about counselling.