Does an Employer Justified Retirement Age ('EJRA') necessarily result in unlawful age discrimination?
No, held the EAT in Pitcher v University of Oxford and University of Oxford v Ewart, dismissing appeals against two contrasting tribunal judgments arising from the University's compulsory retirement policy.
The University introduced a retirement age of 67 (subject to contract extensions and alternative posts etc.) following a consultation process and review. The broad justification for the EJRA were three 'legitimate aims':
- inter-generational fairness;
- succession planning; and
- promoting equality and diversity.
In both cases, the fundamental issue was the proportionality of compulsory retirement as a means of achieving the legitimate aims. The EJRA was said to facilitate the aims by not delaying the creation of vacancies, so a younger, more diverse cohort of candidates could be considered for senior academic roles.
In the Pitcher case, the compulsory retirement of a History professor was held to be justified age discrimination and a fair dismissal; in the other case, Ewart, a Physics professor's dismissal was discriminatory, but that case had statistical evidence showing that the EJRA did not produce a significant number of vacancies, evidence lacking in the other case. Both tribunals had come to permissible conclusions on the evidence before them on positions which were different in nature. The EAT noted that in some cases, a proposition from an employer justifying an age discriminatory policy is so obvious (coining the term 'Cockram-obvious' - from Air Products Ltd v Cockram) that it will barely require evidence from an employer to justify it. The EAT noted that early on in the application of such schemes, evidence may be hard to come by to justify a scheme, tribunals should not require evidence which an employer cannot reasonably be expected to produce.
The EAT appreciated that it was undesirable for an employer that two tribunals came to different conclusions on the application of the same measure, the EJRA, but the EAT's function was to correct errors of law, not to strive to find a single answer. Different results may arise from different evidence being before the different tribunals, or from a different focus on the evidence, without there being any error of law, except where considering a proposition that is 'Cockram-obvious'.
The judgment is a useful resource for practitioners seeking to justify or challenge compulsory retirement.
Thanks to Ed McFarlane of Law at Work for preparing this case summary.