Facts

The claimant, Professor John Pitcher, is a well-respected academic who was employed under joint roles as Professor of English literature at Oxford University, and as an English Tutor at St John’s College. He brought the claim against both the Chancellor of the university and the College.

He received notification in June 2014 that his retirement date would be the 30th September 2016, as he would be 67 years old. This was in line with the University’s “EJRA” (Employer Justified Retirement Age) policy. He requested to work beyond this date, and this request was denied by the University’s panel.

After appealing the decision internally, he brought a claim in the Tribunal that the policies were unfair under Section 13 of the Equality Act 2010 (“EqA”), and that he was subject to victimisation under Section 27 EqA and public interest detriment under Section 47B Employment Right’s Act 1996 (“ERA”)

The case focused on one of the crucial questions in age discrimination claims - how does an employer create opportunities so that employees from different backgrounds can achieve their full potential, whilst at the same time, in the interests of fairness, balancing the need for existing senior employees to remain employed?

Background

Regulation 30 of the Employment Equality (Age) Regulations 2006 made it non-discriminatory for an employer to compulsorily retire an employee at the age of 65, but following a controversy resulting from factors such as an increase in life expectancy and increase of state pension age, this was abolished in 2011 and instead employees were given the option to introduce an “EJRA” policy.

The relevant law

In the context of age discrimination, Section 13 of the Equality Act 2010 states that if direct discrimination is apparent (which all parties agree it is in this case), if the protected characteristic is age, the Employer does not discriminate against the employee if they can show that their treatment was a proportionate means of achieving a legitimate aim. Therefore, the judgement focused on whether or not Oxford University’s EJRA policy was a proportionate means of achieving the aims stated within it.

There is little domestic law regarding mandatory retirement dates, but in the case of Seldon v Clarkson Wright & Jakes [2012] ICR 716 (SC) where a senior lawyer was forced to retire at 65, Baroness Hale referred to striking the balance between the two legitimate objectives of “intergenerational fairness” and the concept of “dignity” in a way that is appropriate and necessary.

The Judgement

The Employment judge found that the aims of the EJRA policy were a legitimate social policy aim. Oxford University is world renowned, and therefore needs to attract and maintain the best quality candidates and free up opportunities for the younger generation.

In this case, there was an increasing lack of younger professors due to the only driver of creation of job roles being retirement. He quoted the fact that in 2010, men made up 82.5% of academic staff aged 60-64 and 90.2% aged 65 and older. Diversity was greatest amongst younger staff, which is why the aim of the policy was so important:

“The University was seeking, in 2011, to make available opportunities for women, younger academic staff, those of a different race, and those with disabilities. For too long senior positions have been held by those who did not reflect these groups.”

On the issue of proportionality, the judge considered that the age of 67 had been arrived at following consultation with staff, union and other groups within the University. Alternatives, such as financial inducements and negotiated departures, were considered to be “expensive or unviable”. He also commented that the age of 68 is not fixed, and would likely be extended to 70 in 2020, and the retirement would not divorce Professor Pitcher from academic life, as he could use the facilities for research and obtain funding.

The judge also commented that the compulsorily retirement age was selected by the panel; who engaged in a lengthy consideration process before the policy was introduced. Specific attention was paid to the quality of the panellists: “It is difficult to imagine a more independently minded collective of individuals. They are an unlikely group of people to be browbeaten into adopting a particular point of view”.

In terms of unfair dismissal, the judge concluded that he claimant’s dismissal was fair as it amounted to “some other substantial reason” for the purposes of s98(1) Employment Rights Act;  the reason being that he did not meet the requirements for an extension of his employment under the policy. The claimant was given the opportunity to persuade the EJRA Panel that he should be retained, his application was considered, he was given an opportunity to appeal – a clear process was followed, so it was therefore considered fair.

The conclusion of the judgment was therefore that the provisions in the EJRA were a necessary and an appropriate means of achieving the university’s aims of building a diverse workforce.

Oxford University has said in response: “The university notes this ruling and welcomes the judge’s comments in support of its Employer-Justified Retirement Age policy and procedure.”

The judgment is available here.

Professor John Pitcher v Chancellor, Masters and Scholars of the University of Oxford and Saint John the Baptist College in the University of Oxford: 3323858/2016.