349: Is a compulsory retirement age justifiable?

Employers should revisit their justification for having a compulsory retirement age. Often they will not have thought that through well enough ; or at all.

A compulsory retirement age will be discriminatory on the grounds of age unless it can be objectively justified as a proportionate means of achieving a legitimate aim. A recent Employment Appeals Tribunal (EAT) decision in the joint appeal of Pitcher v Chancellor, Masters and Scholars of the University of Oxford confirmed that an Employer Justified Retirement Age (EJRA) may be justified by the legitimate aims of promoting inter-generational fairness, facilitating succession planning, and promoting equality and diversity.

In the case, the EAT unusually upheld conflicting Tribunal decisions made in respect of claims by two Oxford University Professors, Professor Pitcher and Professor Ewart, as to whether the same compulsory retirement policy applied to both of them was objectively justified. Oxford University operates an EJRA of 67. Its stated aims are to promote inter-generational fairness, facilitate career progression and succession planning, and promote equality and diversity. Exceptions to the EJRA may be granted in very exceptional circumstances by means of an extension procedure.

Professor Pitcher was compulsorily retired by operation of the EJRA at 67. His application for an extension was refused, and he subsequently brought claims for age discrimination and unfair dismissal. These claims were rejected by the Tribunal which found the EJRA to be justified and his dismissal fair. Professor Ewart initially obtained an extension to the EJRA but his application for a subsequent extension was refused and he was compulsorily retired. In a contrasting outcome, a different Tribunal found that the EJRA was not objectively justified in his case, and his claims for age discrimination and unfair dismissal were upheld.

In the conjoined appeal, the EAT has now upheld the two opposing Tribunal decisions. In both cases, each Tribunal had concluded that the EJRA facilitated the University’s legitimate aims of inter-generational fairness, succession planning and diversity by ensuring that the creation of vacancies was not delayed. Addressing the seemingly conflicting decisions on objective justification of the EJRA, the EAT acknowledged that whilst it was undesirable for the University to be faced with different decisions on the same policy, its task was simply to assess whether either Tribunal had erred in law. Crucially, there had been material differences in the way evidence had been presented to each Tribunal: Professor Ewart had presented statistical analysis showing that the EJRA did not necessarily create additional vacancies, whereas this analysis was not part of Professor Pitcher’s evidence. In addition, each Tribunal had heard different evidence on the extent of detriment suffered by employees retired through the EJRA and the relevant mitigating factors in each case. Having considered this evidence and the reasoning of both Tribunals, the EAT concluded that neither was wrong in law and that they had been entitled to reach different decisions.

The case clearly highlights the importance of employers thinking carefully about why a CJRA may be desirable for their business before implementing it, as well as its objective justification. It also underlines the clear importance of being able to evidence this reasoning, ideally with statistical evidence and case studies to demonstrate the impact of the policy.