It is now 10 years since laws were introduced to prevent employers from routinely ‘retiring’ their staff at 65 (or whatever other retirement age the employer chose). So cases on the subject of retirement are relatively few and far between. Nevertheless, when they do come along, the decisions can prove very interesting.

Two cases in one?

This month, we have been considering two cases relating to compulsory retirement, both of which were brought against Oxford University. 

John Pitcher and Paul Ewart were professors, who worked for Oxford University until being forced to retire against their will. As a result of the university’s so-called ‘Employer Justified Retirement Age’ (EJRA), Professor Pitcher was required to retire on reaching the age of 67 and Professor Ewert was also required to retire, albeit after obtaining an initial extension to his contract.

In both cases, Oxford University argued before the Employment Tribunal that its EJRA was justified by reference to its stated aims of:

• achieving inter-generational fairness;
• facilitating effective succession planning; and
• promoting equality and diversity amongst staff.

When the two cases were heard by different Employment Tribunals, despite almost identical facts, diametrically opposing decisions were made. In the Pitcher case, reliance on the EJRA was found to be lawful. Yet in the Ewart case, the dismissal was found to amount to age discrimination. Interestingly, in the Ewart case, the university struggled to provide evidence that the existence of the EJRA has actually contributed to the achievement of its stated aims.

So if the Employment Tribunal could reach different conclusions in cases involving very similar facts, what would the Employment Appeal Tribunal make of the situation when asked to consider both decisions at the same time?

Good news and bad news  

Upon hearing appeals from Professor Pitcher in the one case and Oxford University in the other, one might have expected EAT to come down firmly on one side or the other.  Was the university’s EJRA lawful or not? Instead, the EAT found that it was entirely appropriate for ETs hearing different cases to reach different conclusions, despite the very similar facts. The slight differences in the evidence presented to the two Employment Tribunals explained the difference in outcomes and in neither case could the EAT find any error of law in the decisions reached. As a result, both decisions were upheld; the appeals were unsuccessful.

Where now? 

This seems like a very odd situation for all concerned, especially the university. Is the EJRA lawful or not? Can the university rely on it in future or not? The answer appears to be unclear.

According to its website, the University is currently reviewing its EJRA. Given the circumstances, the university must inevitably be giving serious consideration to the future of its EJRA. Can it survive? Are there changes that could be made in order to ensure that it is legally justified? Or should it be scrapped entirely? We wait with interest to see what happens.