The Employment Appeal Tribunal (EAT) has recently provided its judgment on two appeals in relation to compulsory retirement ages.

Both claims called into question the lawfulness of the Employer Justified Retirement Age (EJRA) implemented by Oxford University, under which employees were required to retire at age 67.

Since 6 April 2011, employers who choose to implement compulsory retirement ages have been at risk of directly discriminating against employees on the grounds of age. In order to avoid such a claim, employers must demonstrate that:

• the fixed retirement age was intended to meet a legitimate aim; 
• having the particular retirement age meets that aim; and 
• it is proportionate to use that retirement age as a means of meeting that aim.

The 'legitimate aims' of the EJRA were held to be: 

• inter-generational fairness; 
• succession planning; and 
• equality and diversity. 

The question was whether the EJRA was a proportionate means of achieving these legitimate aims.  Under the EJRA, employees had the ability to apply for an extension.  

Pitcher and Ewart  

Pitcher was an Associate Professor at Oxford University and an Official Fellow and Tutor at St John's College. At aged 67, he was compulsorily retired under the EJRA, his extension application having been rejected. Pitcher brought claims of direct age discrimination and unfair dismissal. The Tribunal held that the EJRA was a proportionate means of achieving the legitimate aims and dismissed Pitcher's claim. Pitcher appealed.

Ewart was also an Associate Professor at Oxford University. Ewart was granted a two year extension beyond the EJRA. However, his application for a second extension was refused. Ewart brought a claim for direct age discrimination and unfair dismissal but, contrary to Pitcher, the Tribunal held that the EJRA was not a proportionate means of achieving the legitimate aims, and that the dismissal was unfair. The University appealed.

The EAT upheld both decisions. 

In Pitcher's case, it was acknowledged that there was limited statistical evidence available to demonstrate the impact of the policy due to the fact that the EJRA was still relatively new. The EAT therefore agreed that the ET had been entitled to take the results of a survey, which demonstrated that 26% of retirees would have continued for an average of 3 years absent the EJRA, into account when concluding that the EJRA improved staff turnover. This in turn resulted in improved intergenerational fairness, diversity and staff morale. The EAT further agreed that the discriminatory impact of the policy was sufficiently mitigated by the extension provisions. 

In Ewart, the Tribunal had the benefit of statistical evidence when assessing the impact of EJRA. In particular, the evidence demonstrated that vacancies were being created at a rate of between 2-4%. This increase in vacancies in support of the legitimate aim was said to be 'trivial' in comparison to the discriminatory impact of the policy. The EAT also agreed that the discriminatory impact was not mitigated by the extension provisions.     

Key points

The key message to employers who wish to implement compulsory retirement ages is to ensure that there is a strong justification for such in each instance. As demonstrated in Pitcher and Ewart through the conflicting outcomes regarding the same policy, there is no 'one size fits all.' The ET will analyse the facts of each individual case, and the evidence available to it at the time (to the extent there is any), to determine whether such can be justified.  

Pitcher v Chancellor, Masters and Scholars of the University Of Oxford and anor and Chancellor, Masters and Scholars of the University of Oxford v Ewart