The Employment Appeal Tribunal has upheld two separate employment tribunal decisions about Oxford University’s compulsory retirement age for academic staff, even though they reached opposite conclusions on whether or not it was justified.
In the first decision, published in May 2019, an employment tribunal dismissed a claim by Professor Pitcher for direct age discrimination after he was made to retire at 67. But in December 2019 a different employment tribunal ruled that the compulsory retirement of Professor Ewart had been unlawful age discrimination. In Professor Pitcher’s case, there was a similar claim against St John’s College which was also dismissed.
Both tribunals were assessing exactly the same compulsory retirement policy, which had been introduced by the University in 2011 and refined in 2015. Any compulsory retirement policy will result in direct age discrimination against employees who are made to retire at the specified retirement age, unless the employer can justify the policy as “a proportionate means of achieving a legitimate aim”. Both tribunals agreed that three of the University’s aims in introducing the policy had been legitimate, but reached opposite conclusions when deciding whether the means chosen to achieve those aims had been proportionate.
One might have thought that when reviewing these decisions, the EAT would come down on one side or the other. However, as an appellate body, its job when hearing an appeal is to decide whether or not the employment tribunal has made an error of law. It is not entitled, except in exceptional circumstances which didn’t apply here, to make its own assessment on whether a particular policy can be justified. So in short, on issues like this, there can be more than one right answer.
The EAT looked closely at the decisions of both employment tribunals and decided that neither had made an error of law. One explanation for the divergent decisions can be found in the fact that Professors Pitcher and Ewart presented different evidence in support of their claims, but it is not clear whether that was the decisive factor.
The outcome of these appeals presents a confused picture on the lawfulness of compulsory retirement ages generally. One can say with some confidence that they are not easy to justify, but that does not mean that it is impossible to do so, particularly if good evidence is available over time of their contribution to achieving the employer’s aims. Typically these will be around giving younger staff a chance to progress, increasing diversity at a senior level and succession planning.