The EAT has upheld opposing Tribunal decisions on justification of the same compulsory retirement policy.
The facts
Since the repeal of the default retirement age in 2011, an employer operating a mandatory retirement age will be at risk of unlawfully discriminating against its employees on grounds of age, unless it can show that mandatory retirement is objectively justified as a proportionate means of achieving a legitimate aim.
In this case two Oxford University professors brought claims against the University, alleging that the University’s mandatory retirement age of 67 was an act of direct age discrimination and that they had been unfairly dismissed. These were separate claims. The University argued in respect of both claims that the mandatory retirement age was objectively justified.
Although the claims were brought in respect of the same mandatory retirement age, against the same employer, the claims of direct age discrimination and unfair dismissal were upheld for one of the two professors and dismissed for the other professor.
Both judgments were appealed in the EAT.
The EAT held that there were three legitimate aims to the mandatory retirement age: inter-generational fairness, succession planning, and equality and diversity. The mandatory retirement age facilitated other measures in achieving those aims by ensuring that vacancy creation was not delayed and that recruitment into senior academic roles might take place from a younger, more diverse cohort.
However, the two professors had presented different evidence to the Employment Tribunal, and this led to the conflicting decisions.
The EAT considered that the evidence in respect of the first professor’s claim (which included a survey of retirees, a quarter of whom said that they would have continued in employment for three more years had it not been for the mandatory retirement age) demonstrated that, without the mandatory retirement age, turnover would be significantly lower. The Tribunal had also properly taken mitigation of the discriminatory impact into account. The EAT therefore upheld the Tribunal’s judgment that the first professor had not suffered age discrimination nor been unfairly dismissed.
The second professor’s statistical evidence to the Tribunal, however, demonstrated that the rate of vacancies created by the mandatory retirement age was trivial, and the Tribunal had found that the discriminatory impact of the mandatory retirement age was severe and had not been significantly mitigated. The second professor had, therefore, been unfairly dismissed and suffered direct age discrimination.
There are, therefore, two conflicting decisions on the same retirement age, operated by the same employer, for the same legitimate aims. The EAT acknowledged that this was unsatisfactory, but pointed out that the presentation of the claims and the evidence had been different in important respects. The nature of an assessment of proportionality means 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.
What does this mean for employers?
Although these decisions are conflicting, there are some useful learning points for employers. These cases show that employers can treat the promotion of inter-generational fairness, the facilitation of succession planning and the promotion of equality and diversity as legitimate aims when considering mandatory retirement ages.
Employers who wish to impose a mandatory retirement age should make sure that they have considered how they will measure the effect of the mandatory retirement age on achieving their aims and be prepared to make changes to the implementation of, or withdraw, the retirement age if it does not achieve those aims.
Pitcher v Chancellor, Masters and Scholars of the University of Oxford [2021] 9 WLUK 293
