Conflicting Decisions Upheld on Appeal

You might think that if two different employees challenged an employer’s policy on retirement age on grounds of age discrimination before different Employment Tribunals and the two Tribunals reached opposite conclusions as to whether it was discriminatory, the point of a joined appeal of the two cases to the Employment Appeal Tribunal ("EAT") would be to decide which Tribunal was right, so the employer and its staff would know where they stood in future.

However, you would be wrong.  Employment Tribunals have a wide discretion to decide cases on the facts, based on the evidence before them, and the EAT can only overturn their decisions if they have made an error of law or have reached a decision which is perverse on the facts.  If two different Tribunals have reached different conclusions regarding the same retirement scheme on the basis of differing evidence and both have applied the law correctly and come to reasonable (though different) conclusions, then the EAT cannot interfere.

That is what happened in the cases of Pitcher v University of Oxford and St John’s College, Oxford and Ewart v University of Oxford.  The University, and St John’s College, had adopted an Employer Justified Retirement Age ("EJRA") of 67, with a procedure for applying for extensions to the retirement date and subject to future review of the scheme.  The stated aims of the EJRA included (1) promoting inter-generational fairness; (2) facilitating succession planning (in the sense of knowing when vacancies could be expected to arise); and (3) promoting equality and diversity.  The Tribunals also found that these three aims helped achieve a further over-arching objective of safeguarding high academic standards.  These were all upheld as legitimate aims which could be used to justify what would otherwise be direct age discrimination, but the University also had to show that the EJRA was justified as being a proportionate method of achieving those legitimate aims.  This is where the evidence presented to the two Tribunals, and so the conclusions they reached, differed.

Professor Pitcher was an Associate Professor of English Literature.  His application for an extension when he reached 67 was refused by the University and St. John’s College, and he was compulsorily retired.  The Tribunal in his case considered the evidence of the factors considered in establishing the scheme and its first 3 years of operation, and found the EJRA was justified.

Professor Ewart was an Associate Professor in Atomic and Laser Physics. He succeeded in obtaining a two year extension to his retirement age, but his application for a second extension was refused.  Crucially, he submitted in evidence his own statistical analysis of the increase in vacancies as a result of the EJRA, which showed that it was only a trivial 2-4%.  The University had not carried out its own analysis and did not submit any evidence of its own as to the effect of the EJRA in increasing vacancies.  As the legitimate aims were to create vacancies for a younger, more diverse cohort of academics, the Tribunal in Prof. Ewart’s case found that the discriminatory effect was disproportionate to the extent to which the legitimate aims were achieved, and therefore found the EJRA was not justified.

Prof. Pitcher was therefore not discriminated against, but Prof. Ewart was - by the operation of exactly the same scheme.  The fact that Prof. Ewart obtained one extension was not material (and if anything you might think that made his case less discriminatory).

The EAT could find nothing wrong with the decision of either Tribunal - on the basis of the evidence on the crucial issue of justification before them, and therefore upheld both decisions, despite their conflicting results.

This shows the limitations of appeals.  But where does it leave the University, or indeed other employers trying to decide how to implement non-discriminatory retirement policies?

Well, it seems Prof. Ewart had the better evidence.  Being a science Professor clearly helped here.  So, unless the University can produce a better statistical analysis which does show it is achieving its aims, it will need to rethink its retirement policy.

For other employers, the aims of inter-generational fairness, succession planning and promoting equality and diversity have all been upheld as legitimate ones, and safeguarding high academic standards could be rephrased as safeguarding high standards of performance in other appropriate industries (e.g. in law firms).  But the tricky question remains of how do you implement them in a proportionate manner?  Monitoring the scheme you do adopt and carrying out some statistical analysis, and amending the scheme based on the results, appears to be one way of doing it.  I do wonder though how many such schemes will achieve results of significantly better than a 4% increase in vacancies becoming available for younger generations?