Employment Law Case Update: Age Discrimination and Retirement

When considering a retirement age within your business, if you wish to make this a mandatory age, there will need to be legitimate business reasons for such a requirement.  Our Employment Law team today review the case of Professor Paul Ewart v The Chancellor, Master and Scholars of the University of Oxford, which analyses those potential business reasons and how they could lead you to a tribunal.

Professor Paul Ewart was an associate professor in the Department of Physics at the University of Oxford. The university has an Employer Justified Retirement Age (EJRA) policy which imposes a mandatory retirement age of 67. Employees wishing to continue working beyond this age would need to successfully apply for an extension. Extensions were usually only granted if certain criteria were met, such as requiring more time to complete a research project.

Professor Ewart was scheduled to retire on 30 September 2015. He successfully applied for an extension of two years, bringing his new retirement date to 30 September 2017. In September 2016, he applied for a second extension, claiming that unforeseen circumstances had prevented his research projects from being completed within the original extension. He proposed to continue working on a part-time, three year contract. This second application was rejected by the university and Professor Ewart’s employment terminated on 30 September 2017. He then filed an Employment Tribunal (ET) claim alleging aged-based discrimination and unfair dismissal.

It was accepted by the university that its EJRA policy amounted to direct age-based discrimination. However, Professor Ewart’s claim for age-based discrimination would fail if the university could show that the policy was a “proportionate means of achieving a legitimate aim.” In the cases of age-based discrimination, a legitimate aim is an aim which has a “public interest nature”.

Oxford University presented five aims of its EJRA policy. The ET accepted the following four of them as being legitimate:

• “safeguarding the standards of the university,”
• “promoting intergenerational fairness,”
• “equality and diversity,” and
• “facilitating succession planning.”

The university argued that the EJRA policy contributed to these aims by creating more vacancies which could then be filled with younger, more diverse staff.

The ET accepted that in principle the policy could contribute to the legitimate aims, but said that proportionality depended on “the extent to which the measure contributes towards meeting those legitimate aims.”

The policy was “highly discriminatory” and had a “severe impact” on the affected employees, which was not mitigated by the opportunity to apply for an extension. In order for the EJRA policy to be justified, the university would need to demonstrate that it was highly effective at creating vacancies which could then be filled by younger, more diverse, employees. It is here that the university failed. It presented no real evidence to the ET that the policy significantly increased vacancies. The only evidence of the policy’s effect on vacancies was presented by Professor Ewart, which showed only a 2-4% increase in vacancies, a figure the ET described as “trivial.” This trivial increase in vacancies was not enough to outweigh the highly discriminatory nature of the policy; consequently, the ET found Professor Ewart had been subject to direct age-based discrimination.

The ET ordered Professor Ewart be reinstated from 1 October until 30 September 2021. It also awarded Professor Ewart £22,500 as compensation for injury to feelings and an additional £7,110 as interest.

It should be noted that this case contradicts a case from May 2019, Pitcher v University of Oxford in which a professor was forced to retire from Oxford under the same EJRA policy, and the ET held the policy to be justified. Both Pitcher and this case are first instance decisions and so neither are binding on future ET cases. The university has indicated it will appeal Professor Ewart’s case to the EAT which, if heard, may provide further clarity. 

This case highlights some of the challenges employers may face when imposing a mandatory retirement age. Employers wishing to introduce such a policy will need to show that the policy pursues a legitimate aim and is proportionate. As this case shows, proportionality can be a high bar to clear. Employers should be able to present evidence that their policy is effective at achieving the legitimate aim. The harsher the effects of the policy, the stronger that evidence should be.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.