Direct Age Discrimination – Justification – Proportionality – Unfair Dismissal
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. At 67, he was compulsorily retired from both employments by operation of the Employer Justified Retirement Age (‘EJRA’) that the University and the College both operated, his application under the extension provisions of the EJRAs having been refused. An ET dismissed Professor Pitcher’s claims of direct age discrimination and unfair dismissal, finding that the EJRAs were justified and the dismissals fair. Professor Pitcher appealed. Professor Ewart was an Associate Professor in Atomic and Laser Physics at the University. The EJRA was also applied to him but he initially obtained an extension of his employment, vacating his substantive post and taking up a fixed-term position. Upon his application for a further extension, Professor Ewart was unsuccessful and also faced compulsory retirement. A differently constituted ET upheld Professor Ewart’s claims of direct age discrimination and unfair dismissal, in particular finding that the University had not shown the EJRA to be justified. The University appealed the decision on the age discrimination claim.
On the combined hearing of the appeals, the EAT dismissed both appeals, holding:
The University and the College had the following legitimate aims: (1) inter-generational fairness; (2) succession planning; and (3) equality and diversity. The EJRA was said to facilitate other measures in achieving those aims by ensuring vacancy creation was not delayed and recruitment into senior academic roles might take place from a younger, more diverse cohort.
In Professor Pitcher’s case, the ET acknowledged the limited evidence demonstrating impact but considered this was because the EJRA was relatively new (Air Products plc v Cockram [2018] IRLR 755); giving weight to survey evidence regarding those who would have continued in employment absent the EJRA, and to the mitigating effects of the extension provisions, the discriminatory impact (also mitigated by post-retirement opportunities for senior academics) was justified. The ET further found Professor Pitcher was dismissed for a fair reason (the application of an EJRA that was not unlawfully discriminatory), and the University and College had acted within the band of reasonable responses. These were conclusions open to the ET on the evidence; no error of law was revealed.
In Professor Ewart’s case, a statistical analysis showed the rate of vacancies created by the EJRA was trivial (2-4%); although disputed by the University, the ET found it had not produced sufficient evidence to show the EJRA could contribute to the realisation of the legitimate aims; further finding the discriminatory impact was severe, and not significantly mitigated by the extension provisions, the EJRA was not shown to be proportionate. As for the additional requirement for a second extension (unforeseeable circumstances delaying project completion), as the desired vacancy had been created, the ET found this was not linked to a legitimate aim. The ET again reached conclusions open to it on the evidence; it did not err in its approach and there was no error of law.
Although reaching different conclusions on proportionality, neither ET erred in law. The nature of the proportionality assessment meant it was possible for different ETs to reach different conclusions when considering the same measure adopted by the same employer in respect of the same aims; the task of the EAT was not to strive to find a single answer, but to consider whether a particular decision was wrong in law. Although justification related to the policy and not its individual application, the presentation of the claims and the evidence before the ETs differed in material respects. Neither ET erred in the decisions reached.
The Honourable Mrs Justice Eady DBE
[2021] UKEAT 2019-000638
Bailii
England and Wales
Updated: 26 October 2021; Ref: scu.668246