Two university professors argued that Oxford University’s compulsory retirement age, and therefore their dismissal under it, was unjustified direct age discrimination. The two employment tribunals deciding their claims reached opposite conclusions on this. The EAT held the tribunals were entitled to do so.
2021, Employment Appeal Tribunal (EAT). Full judgment www.bailii.org/uk/cases/UKEAT/2021/2019-000638.html
Facts
These were claims by two university professors arguing that a compulsory retirement age under the same Oxford University policy was unlawful direct age discrimination, because it was not justified (EqA s.13(2)).
One claimant was a professor of English Literature, and the other of Atomic and Laser Physics.
The first lost his employment tribunal claim, but the second won it.
Held: Both tribunal decisions could stand.
EAT decision
The EAT said the two employment tribunals had rightly viewed the issue of detriment in general terms – justification relating to the compulsory retirement policy, not individual examples of its application (§186). This was based on a comment by Lady Hale in the Supreme Court decision of Seldon that “… where it is justified to have a general rule, then the existence of that rule will usually justify the treatment which results from it” (§105). [See further Comment below].
Despite that, said the EAT, both employment tribunal decisions could stand. The tribunals had each received different evidence, and were entitled to give different weight to the mitigating factors relied on. They had not erred in law in reaching the conclusions they did.
For example, the Physics professor had given evidence of why options to mitigate the forced retirement, such as contributing in an unpaid Emeritus position, were not viable alternatives for someone like him who required access to laboratory facilities and a research team to continue experimental research.
Citing an EU case, the EAT (§105), added to Lady Hale’s comment (quoted above) that a blanket policy that takes insufficient account of different employee circumstances might fall to be treated as disproportionate.
Comment
The EAT effectively said that the question both employment tribunals had to answer was the same, namely whether this university’s compulsory retirement age was justified. It was the same retirement policy, same university. The question was not whether compulsory retirement of each individual claimant was justified, in their particular circumstances. A similar principle can sometimes – though I think rarely – apply to disability under s.15 EqA: Justification under s.15: Is it sometimes the general practice that must be justified? Presumably the justification test here was the same as that for indirect discrimination under s.19 EqA: Justification defence for indirect discrimination is easier than for other disability claims.
Even so, said the EAT, the two different tribunals were entitled to reach different conclusions on whether the university’s compulsory retirement age was justified. Each tribunal had different evidence presented to it, and whether justification has been shown is a matter for the tribunal to assess. The tribunals were entitled to reach their different conclusions despite the fact that they were addressing the same question about the same retirement policy.
Note that unlike other protected characteristics, for age it is possible to “justify” direct discrimination. There is no equivalent defence for direct disability discrimination.
Comment: Relevance of individual circumstances
This case illustrates that even if it is the practice or policy in general that has to be justified, like under s.19 EqA, the individual circumstances in the claimant’s case can be relevant: see further Justification defence for indirect discrimination is easier than for other disability claims>Relevance of individual facts even if “group” approach taken.
It can be seen that the evidence brought by the professor who was more severely impacted swayed his employment tribunal to find in his favour.
