Unlike most forms of direct discrimination, direct age discrimination can be justified as a proportionate way of achieving a legitimate business aim. Employers must now justify any retirement policy which requires employees to retire at a certain age, by showing it is a proportionate way of achieving a legitimate business aim. The EAT has recently looked at two cases brought against the University of Oxford, challenging its ‘justified retirement age’ of 67, where the employment tribunals came up with different answers based on the same policy.
Professor Pitcher was an associate professor of English Literature. The University refused to allow him to work beyond 67 and his employment terminated when he reached 67. He brought unfair dismissal and age discrimination claims. The employment tribunal said his retirement was less favourable treatment based on age, but said the policy was justified. The University was pursuing the legitimate aims of promoting inter-generational fairness (including opportunities for younger academics to progress), facilitating succession planning and promoting equality and diversity (the employer said providing opportunities for younger academics was likely to increase diversity). The tribunal said these aims were legitimate and the retirement age was a proportionate way of achieving them. Professor Ewart was an associate professor in Atomic and Laser Physics. He had been granted a two-year extension beyond 67 but was refused a further extension. He brought similar claims. The employer relied on very similar legitimate aims. However, in this case there was evidence that the retirement policy did not create a significant number of vacancies, something that had not been before the tribunal in Pitcher. A different employment tribunal said in Ewart that the retirement policy was not a proportionate way of achieving legitimate aims. The losing party in each case appealed and it was left to the EAT to work out whether there was a single answer to the same question about whether the retirement policy was discriminatory.
The EAT refused to interfere with either judgment. The only reason an appeal court can change a judgment is if the employment tribunal has made an error of law which creates a perverse outcome. The EAT noted that it wasn’t desirable to have two different outcomes on the same policy. However, in these cases, different evidence was before each of the tribunal panels. If each of the tribunals reached a conclusion that was open to it based on the evidence, the fact that another tribunal reached a different decision does not give the EAT the right to interfere.
This case shows that employment tribunal claims are all about the evidence. In the Ewart case, statistical evidence was available which undermined the employer’s aims and the proportionality of its ways of achieving them. The tribunal in Pitcher did not have the benefit of seeing this evidence. That may explain the different outcomes. But as the EAT noted, different tribunals may come to different decisions provided that the decisions they make are not perverse. Employers must be careful in relation to compulsory retirement ages and ensure that the legitimate aims they are pursuing are properly met and pursued in a proportionate way. If the policy doesn’t actually bring about the aim you are seeking, the means of achieving it are unlikely to be considered proportionate when balanced against the very clear detriment to an employee of losing their job.
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