The Employment Appeal Tribunal (EAT) has dismissed two appeals relating to the application of Oxford University’s Employer Justified Retirement Age (EJRA) policy.
In December 2019, an employment tribunal found that the university acted unlawfully when it refused a second extension of employment for Professor Paul Ewart, who claimed he was forced to retire from his position as head of atomic and laser physics before his 70th birthday. He brought a claim for unfair dismissal and age discrimination and was awarded almost £30,000 in compensation.
Separately, in May 2019, a different tribunal panel ruled against Professor John Pitcher, who taught English at St John’s College in Oxford. Prof Pitcher had claimed that his forced retirement, at age 67 in 2014, was unlawful but the judge found that the university’s EJRA was justified in his case, as it served a social purpose in providing a route up for younger academics.
The university’s EJRA has been in place since 2011 and aims to improve diversity among its teaching and academic staff. Since 2017, the EJRA has been set at the 30 September preceding an individual’s 69th birthday, but academics can apply for an extension of their contract in exceptional circumstances, for example completing research. At the time of Prof Pitcher’s retirement the EJRA was 67.
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The EAT considered two appeals together – one in which Prof Pitcher appealed against the ruling that his dismissal had been fair, and one in which the University of Oxford argued that its decision to dismiss Prof Ewart could be justified. It reached different outcomes from the perspective of the individuals.
It acknowledged that the EJRA had three legitimate aims: ensuring inter-generational fairness, aiding succession planning, and ensuring equality and diversity. It also ensured that vacancies came up at a predictable time.
Prof Pitcher’s appeal centred on the evidence the university put forward in support of its decision to dismiss him, which the EAT found to be satisfactory. It also agreed with the tribunal’s decision that Prof Pitcher was dismissed for a fair reason, because the EJRA was not unlawful, and that the university had acted reasonably.
“The factors taken into consideration were not so subjective as to be unreasonable: as Professor Pitcher had accepted, others could take on his teaching duties and there was a legitimate concern that the vacancy his retirement would yield should not be delayed, given that no other vacancy at associate professor level was expected within the faculty until 2020,” the judgement says.
“Both the university and the college were mindful of the greater diversity new appointments might allow… and were entitled to have regard to concerns of inter-generational fairness, in particular given the expectation that a high quality appointment could be made.”
The university’s appeal in the Prof Ewart case related to the proportionality balancing exercise conducted by the employment tribunal – particularly how it approached the impact of the EJRA on the issue of vacancies and mitigating discriminatory impact.
The EAT says in its judgment: “Although the grant of an extension would both reduce the numbers of those compulsorily retired at the EJRA, and mitigate the discriminatory effect of the policy on the particular individual concerned, all those to whom the policy applied (those approaching the age of 67) would either face the compulsory loss of their employment or, if they were able to successfully apply for an extension…, would be required to vacate their former post and move to a fixed-term contract.
“On the evidence before it, the [tribunal] concluded that the discriminatory impact on the employees concerned was ‘severe’, observing that this directly discriminatory measure gave rise to ‘a lasting and final impact on the basis that someone is highly unlikely to be able to return to an active research career at a university once dismissed at that age’. That was a conclusion it was entitled to reach.”
The EAT also considered whether it was possible for different employment tribunals to reach different conclusions when considering the same measure adopted by the same employer with the same aims. It found that this was possible as neither tribunal had erred in its application of the law and had received different evidence.
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A spokesperson for the University of Oxford said: “The University is now considering the details of the Employment Appeal Tribunal’s ruling. The University’s scheduled 10-year review of its EJRA policy is already underway, and is expected to complete in 2022.”
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