18 November, 2021
At first sight it would appear that the imposition of a compulsory retirement age which forces employees to retire when they reach a certain age is blatant age discrimination. However, an employer can avoid liability for such discrimination provided that it can demonstrate that its conduct in enforcing a policy of compulsory retirement is objectively and reasonably justified by a legitimate aim, and the means of achieving that aim must be appropriate and necessary. If the conduct in enforcing a compulsory retirement age is objectively justified, an employer is likely to be in a better position to justify the dismissal of an employee as fair on the basis of 'some other substantial reason' which is a potentially fair reason under s.98 of the Employment Rights Act 1996. The employer must also follow a fair procedure.
However it is important for employers to know that the nature of the proportionality test (as described above) 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. This means that the proportionality assessment is a key factor, but highlights that the evidence available to support the decision, which can differ significantly between different cases, is of paramount importance.
In Pitcher v Chancellor Masters and Scholars of the University of Oxford and anor and another case (Chancellor, Masters and Scholars of the University of Oxford v Ewart), the Employment Appeals Tribunal upheld the decisions of two different employment tribunals:
Case One: Finding that the University of Oxford's mandatory retirement age was objectively justified
Case Two: Finding that the University of Oxford's mandatory retirement age was not objectively justified
In both cases the Employment Appeals Tribunal held that the University and the College had legitimate aims. Namely:
Equality and diversity
Case One: P was an Associate Professor of English Literature at Oxford University and an Official Fellow and Tutor in English at St John's College. At 67, he was compulsorily retired from both employments by operation of the Employer Justified Retirement Age (EJRA) a policy that the University and the College both operated. P's application under the extension provisions of the EJRAs was refused. An employment tribunal dismissed his claims of direct age discrimination and unfair dismissal, finding that the EJRA was justified and the dismissal fair.
It was effectively argued that the use of the EJRA facilitated measures designed to achieve specific aims such as ensuring vacancy creation was not delayed and recruitment into senior academic roles could take place from a younger, more diverse cohort. So essentially the approach taken by the University amounted to a proportionate means of achieving a legitimate aim. In particular, the Employment Appeals Tribunal held that the tribunal was entitled to give weight to evidence from a survey of retirees that indicated that around a quarter said that they would have continued in employment for a further three years had it not been for the EJRA. In these circumstances, the Employment Appeals Tribunal could not say that it was perverse of the tribunal to find that, absent the EJRA, turnover would be significantly lower.
Case Two: E was an Associate Professor in Atomic and Laser Physics at the same University. The EJRA was also applied to him, but he initially obtained an extension of his employment, vacating his substantive post and taking up a fixed-term position. Upon his application for a further extension, E was unsuccessful and faced compulsory retirement. A differently constituted employment tribunal upheld E's claims of direct age discrimination and unfair dismissal, in particular finding that the University had not shown the EJRA to be justified.
It could not be demonstrated that compulsory retirement in this case was a proportionate means of achieving a legitimate aim. Of particular relevance was a statistical analysis which showed that the rate of vacancies created by the EJRA was trivial (2 - 4%). Therefore, in this case the tribunal had been entitled to find, on the evidence as presented, that there was insufficient evidence to show the EJRA had been proportionately applied to the achievement of the University's legitimate aims.
Ultimately employers need to know age is necessarily expressed as one point in time. The issue is always to determine where a balance lies; the balance between the discriminatory effect of a particular age and its success in achieving an aim held to be legitimate, such as the belief that the retention of older employees can often been seen as a limitation upon the opportunity for advancement. Obviously, evidence in individual cases is also going to play a significant part in this factor.
Employers should also acknowledge that the process of justification is of paramount importance and must be evidence led meaning employers need to demonstrate very clearly, and in a concrete way, for example the problem created by operating without a mandatory retirement age. Furthermore, employers will have to show that a chosen age is proportionate to achieving a specific objective, meaning that employers will have to be clear why the same objective cannot be achieved without a mandatory retirement age.
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