Same case different result?
We explore a case where there were different conclusions from similar hearings.
The Employment Appeal Tribunal (EAT) upheld different conclusions from two separate Employment Tribunal (ET) hearings in relation to justification of age discrimination.
In this article we highlight the rather interesting conclusion of the EAT in determining that two conflicting decisions by the ET in relation to the justification of the University of Oxford’s mandatory retirement age were both lawful.
The case concerned a couple of Professors at the University of Oxford. Firstly, P, an Associate Professor of English Literature. He also held positions as a College Tutor of English and was an Official Fellow. Despite trying to prolong retirement through an official process, P was compulsory retired at 67 by operation of the Employer Justified Retirement Age (EJRA). P brought a claim for direct age discrimination and unfair dismissal. The ET determined that the EJRA was justified and dismissed P’s claims. The other case relates to professor E, who was an Associate Professor in Atomic and Laser Physics. As with P, the EJRA also applied to E. Conversely to P, E had vacated his substantive duties and took up a fixed term role. When he tried to extend this role he was unsuccessful and was also retired on a compulsory basis by operation of the ERJA. E also brought claims for direct age discrimination and unfair dismissal. A different tribunal upheld E’s claims deciding that the EJRA could not be objectively justified.
P appealed the tribunal’s decision and the University of Oxford appealed against E’s success. Despite the contrasting findings, the EAT dismissed both appeals. It held that the University and the College had the following legitimate aims: (1) inter-generational fairness; (2) succession planning; and (3) equality and diversity. The ERJA was seen to have followed through on legitimate social policy aims. The University is world renowned and needs to be able to attract and maintain the best candidates and allow opportunities for future generations.
Although the EAT stated it was far from ideal for an employer to be faced with two conflicting decisions relating to its use of the same policy, the EAT made it clear that finding a single answer was not its main purpose, it had to determine whether either ET had erred in law. It was clear both claims had been presented differently and both ETs had been given different evidence which explained the conclusions reached. For example, E’s claim had the benefit of statistical analysis regarding the impact of the EJRA on vacancies created.
Most importantly this case very neatly highlights how difficult it can be to predict the outcome of a claim and how important the documentary evidence available is to the outcome!
Despite the potential uncertainty created for employers there are also helpful points to learn for employers considering a compulsory retirement policy. The decision confirms some of the legitimate aims (numbered 1-3 above) that may be relied upon by employers when justifying a compulsory retirement policy. Employers should also consider how they will measure the effect of their chosen policy on their specific legitimate aims and make sure they change the approach if the desired results are not being delivered.