Employment Tribunal holds that retirement policy operated by university was age discriminatory27/01/20
In the recent case of Ewart v University of Oxford, the Employment Tribunal (ET) has found that the dismissal of a university professor once he reached the employer’s default retirement age was unfair and discriminatory on grounds of age.
The University operated an Employment-Justified Retirement Age (EJRA) which required an individual to retire on the 30 September before he/she reached the age of 68. The EJRA was not amended following the introduction of the Employment Equality (Age) Regulations 2006, outlawing age discrimination in the workplace.
Professor Ewart, a physicist at the University, was dismissed from his employment when his fixed-term contract expired in September 2017 and was not renewed. He was originally due to retire in September 2015, at the age of 67, but successfully applied for a 2 year extension. His application for a second extension following the expiry of the fixed-term contract was refused.
Professor Ewart brought claims of unfair dismissal and age discrimination. The University accepted that he was dismissed because of his age, but argued that the EJRA was a proportionate means of achieving a legitimate aim, and was not therefore unlawful discrimination. In relation to the unfair dismissal complaint, the University argued that Professor Ewart’s dismissal was for “some other substantial reason”, one of the five fair reasons for dismissal permitted under section 98 of the Employment Rights Act 1996, and was therefore fair.
The ET upheld Professor Ewart’s claims and found that his dismissal was unfair and discriminatory on grounds of age. The ET found that a number of the reasons behind the EJRA put forward by the University were capable of amounting to legitimate aims. In particular, these included opportunities for career progression, facilitating succession planning and promoting equality and diversity. However, the EJRA was not a proportionate means of achieving these legitimate aims.
Professor Ewart put forward statistical evidence to show that the policy only helped to create 2-4% more vacancies than would otherwise arise, and the evidence suggested that in any event vacancies did not tend to be filled by promoting more junior academics. The ET noted that “The increase in the number of vacancies in support of the legitimate aim is trivial in comparison with the discriminatory effect”, going on to state that it was “hard to think of a more severe discriminatory impact”. It was also notable that the EJRA was only one of the measures adopted by the University in order to increase diversity among its senior academic staff, and the evidence suggested that the University did not view it as a particularly significant part of those efforts.
Given its finding that Professor Ewart’s dismissal was an act of unlawful age discrimination, the ET concluded that his dismissal could not be for “some other substantial reason” and was therefore unfair.
What to take away
This decision will be of interest to employers across all sectors, particularly those in the emergency services sector and others in which a contractual retirement age is frequently found.
Whilst it is a first instance decision only and therefore is not binding on other tribunals, it does provide a useful analysis of the possible legitimate aims that can support a potentially discriminatory policy such as a fixed retirement age, and when these are likely to be justifiable. What is interesting about this case is that the University put forward a number of different reasons to support the EJRA, a number of which were capable of being legitimate aims, and had been found to be the case in previous case law. However, here the EJRA was unlawful as, on the evidence, it was not a proportionate means of achieving those aims. Had it had more of an impact, or been a more significant part of the University’s diversity efforts, the case could perhaps have been decided differently. Employers who wish to impose a fixed retirement age must ensure that such a measure will be proportionate, taking into account other less discriminatory ways in which the legitimate aim could be achieved, and ensuring their position is clearly supported by evidence.
It is not yet known whether the University of Oxford will appeal the decision to the Employment Appeal Tribunal.
For further information on how this issue might affect your organisation, please contact Paul McFarlane, Lee Carroll or Raj Chahal.