Two oppositely decided employment tribunal decisions with surprisingly similar facts and circumstances, involving the same employer and the same policy, have both been upheld by the Employment Appeal Tribunal (EAT). The cases of Pitcher v. University of Oxford and University of Oxford v. Ewart both concerned claims of age discrimination and unfair dismissal brought by former professors of the University. Both professors had been subject to mandatory retirement under the University's Employer Justified Retirement Age policy (EJRA). Considered together by the EAT, these fascinating cases show the impact that slight factual differences and the quality of evidence can have on the outcome of a tribunal.
The University's EJRA
The policy in question was the same in both cases: the EJRA used by Oxford University and, in the Pitcher case, one of its colleges. The EJRA required employees to retire at 67 and was adopted in 2011 after legislative changes meant it was no longer possible to continue operating a contractual default retirement age. The EJRA contained provisions allowing staff to apply to extend their employment beyond the mandatory retirement age. The policy had been consulted on extensively, including amongst the colleges, and an Equality Impact Assessment had been carried out as part of the process.
The EJRA had been adopted by the University with specific aims in mind. These included promoting inter-generational fairness by ensuring career progression for younger academics; facilitating succession planning by maintaining predictable retirement dates; and promoting equality and diversity, given that recent recruits tended to be more diverse than the existing workforce generally, and particularly compared to the older age groups.
Although the EJRA allowed for extensions to be made on a fixed-term basis, decisions on extensions had to take into account the aims of the EJRA and, as a result, they would only be granted in circumstances where the advantages of continued employment outweighed those aims. The EJRA's rules in relation to second extensions were more restrictive and these would only be granted where the extension was essential to address unforeseen circumstances which had frustrated the purpose for which the original extension had been granted.
The claimant in the first case, Professor Pitcher, was an Associate Professor of English Literature at Oxford University and an Official Fellow and Tutor in English at St John's College who, at 67 years old, was compulsorily retired from both positions under the EJRA. As the proposed date of his retirement approached, he applied for an extension to his employment. However, his application was refused as his departments did not consider that there was a sufficiently clear advantage to outweigh the benefit of creating a vacancy. In making its decision, the University considered that a high-quality professional in Professor Pitcher's field could easily be hired and noted the low level of turnover amongst Associate Professors within his department.
In the case of Ewart, the claimant held the post of Associate Professor in Atomic and Laser Physics, as well as a post at a college. When his proposed retirement age was approaching, he applied for an extension of his employment. The application was accepted and he continued in an 80% pro rata role at the department of physics on a fixed-term two-year contract as a senior lecturer, relinquishing the permanent contract he had held and giving up his work at the college entirely. The extension was granted on the basis that the department had found difficulties planning for his succession because of the marginal nature of Professor Ewart's work.
Professor Ewart later requested a further extension of employment by three years, as several of the projects that justified the first extension had been subject to unforeseen delays. This extension was rejected by the department, which took the view that the purposes of the first extension had been met.
Both claimants brought claims for direct age discrimination and unfair dismissal.
The ET decisions
In both cases, the employment tribunals found that the aims of the EJRA (outlined above) were legitimate objectives. However, they came to different findings on proportionality and the effectiveness of the policy in achieving these aims.
The tribunal in the Pitcher case was shown a review group survey in which more than a quarter of respondents said they would have retired later if it were not for the EJRA. It therefore considered that the policy was successful in achieving its aim of creating vacancies, attributing the continuing high numbers of older staff and low diversity levels to the fact that the policy was fairly new. The tribunal also considered that the detriment to the claimant of compulsory retirement was mitigated by the receipt of a pension and the continued ability to use University facilities and apply for grants. The tribunal therefore dismissed Professor Pitcher's claims, finding that the policy was justified and the dismissal fair.
The tribunal in the Ewart case, however, found that the EJRA was not a proportionate way of meeting its aims, stating that it was "highly discriminatory" to dismiss someone merely for a protected characteristic. The claimant presented evidence of a statistical analysis which appeared to show that the effect of the EJRA was only to increase vacancies by 2-4%. The tribunal considered that the Equality Act did not make provision for discriminatory schemes to be founded on "a trial or experimental basis" and "without justification". The University did not provide evidence of the numbers of new vacancies created or of how this was influenced by the EJRA.
The Ewart tribunal also considered the more restrictive rules that applied to the claimant's second extension request. It considered that, as he had already vacated his permanent post, the aim of the EJRA to create vacancies no longer applied. The tribunal therefore decided that the policy was not justified in this case and that the dismissal was unfair.
The EAT commented generally on both cases, saying that "the nature of the assessment that has to be undertaken by tribunals when determining the question of objective justification is such that it is possible for different tribunals to reach different conclusions when considering the same measure adopted by the same employer in respect of the same aims." Although it acknowledged the undesirability for an employer of apparently conflicting decisions in relation to the same policy, it found that neither tribunal had erred in law, having come to their separate conclusions based on the evidence placed before them. The job of the EAT is not to impose a single outcome but to decide whether the decisions made by the tribunals were wrong in law. In these cases, neither decision was legally wrong.
In reviewing the different conclusions, the EAT considered two factors in particular that distinguished the tribunals' decisions. Firstly, the Ewart tribunal had evidence in front of it that was not presented in the Pitcher case, and this had swung the balance towards the policy being unjustified. Secondly, the Ewart case had a few factual differences that meant the issues were considered from a different angle. In particular, the extension that had been granted to Professor Ewart, based on his different circumstances, was found to defeat the objectives of the EJRA.
These cases may seem somewhat contradictory and, as the EAT acknowledges, frustrating for an employer which is trying to assess the justification of a particular policy. However, it is an important reminder of the importance of good evidence at a tribunal. In order to justify a legitimate aim, an employer must be prepared not only to show that the policy adopted is proportionate, but also to provide evidence that it assists in achieving that aim.
Secondly, it is a reminder that apparently slight differences in the factual circumstances can make a significant difference to a case. Employers should consider whether, in writing exceptions into their policy, they are departing from the original objective to such an extent that the policy can no longer be justified.