Not justified – ET hands down ruling on university's compulsory retirement age

Dentons

In its recent ruling in the case of Ewart v. The University of Oxford, the Employment Tribunal (ET) found that Oxford University (the University) acted unlawfully in dismissing Professor Paul Ewart under its employer justified retirement age policy (EJRA). The EJRA, under which staff at senior grades must retire in the September before they turn 68, was introduced in 2011 with the stated aim of bringing younger and more diverse staff into the University. 

Age discrimination has been unlawful since 2006, although the law allows employers to continue to operate compulsory retirement schemes. However, as with any form of direct age discrimination, such schemes must be justified, in that an employer needs to show it is seeking to achieve legitimate aims and the scheme does this in a proportionate way. The "legitimate aim" here must be related to social policy objectives and also be in the public interest. 

In this case, the University sought to justify its EJRA by relying on a number of legitimate aims, including "succession planning", "intergenerational fairness" and "promoting equality and diversity" which it argued contributed to the overall goal of maintaining the University's standards. 

The ET found that these were indeed legitimate aims and noted, in respect of the aim of promoting equality and diversity, that recent recruits were indeed more diverse than the existing workforce. The ET, however, went on to say that, while in principle the EJRA was capable of contributing to legitimate aims, in reality it only created an estimated 2-4% more vacancies than would otherwise have occurred – an effect the ET viewed as trivial when compared with the discriminatory effect it had on older workers. As the University could not show that the EJRA made an adequate contribution to its stated legitimate aims to justify its discriminatory impact, the Tribunal found the policy was not proportionate. It did not therefore need to go on to consider whether the particular retirement age chosen in the policy was itself appropriate.

Interestingly, the decision in this case contradicts an earlier judgment (Pitcher v. The University of Oxford) from May 2019 involving another professor of the University who was forced to retire under the EJRA, in that case however the policy was held to be justified by the ET. Both cases are first instance decisions and so are not binding, although it is understood that the University is considering whether to appeal the most recent judgment. 

This case shows the high bar employers will need to reach to justify enforcing retirement at a given age. Employers not only need to show that an EJRA is linked to a legitimate aim with a wide public purpose, but that the scheme itself is an effective and proportionate tool in reaching that aim. It is also likely to be important for employers to be able to demonstrate that less discriminatory methods were looked at before a compulsory retirement age was introduced. 

In combination with the May 2019 judgment, this case also demonstrates how subjective and fact-specific rulings on EJRAs can be and how the evidence presented regarding proportionality and effectiveness is likely to be key in determining outcome.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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