The Employment Appeal Tribunal (EAT) has held in the combined appeals of Pitcher v University of Oxford and University of Oxford v Ewart that different employment tribunals can come to different conclusions even if the cases relate to the same measure adopted by the same employer in respect of the same aims.
When he reached the age of 67, Professor Pitcher (an Associate Professor of English Literature) was compulsorily retired under the university’s Employer Justified Retirement Age (EJRA). Although the policy allowed for extensions, his request was refused on the basis that the potential advantages would not outweigh the benefits arising from the vacancy that his departure would create.
The EJRA was also applied to Professor Ewart, who was an Associate Professor in Atomic and Laser Physics by the time he reached 67. His request for an extension was agreed because of the nature of his work which had resulted in difficulties in succession planning. However, when he applied for a further extension, his request was refused.
Both men brought claims of direct age discrimination and unfair dismissal. The University defended the claims on the basis that the EJRA had three legitimate aims - inter-generational fairness, succession planning and the promotion of equality and diversity. It also ensured the creation of vacancies and facilitated recruitment into senior academic roles from a younger, more diverse cohort.
Decisions of tribunals
Although the tribunals in both cases found that the aims of the EJRA were legitimate, they arrived at different conclusions with respect to justification.
In the Pitcher case, the tribunal noted the results of a survey which found that a quarter of retired staff would have continued to work for an average of three more years if the EJRA had not existed. As such, the tribunal concluded that it was achieving its aim of creating vacancies. The detriment to Professor Pitcher was offset by the fact that he could decide when to take his pension; he could be put forward for an Emeritus Professorship; he could continue living in college property; and had access to a room for research. Professor Pitcher appealed.
In the Ewart case, on the other hand, the tribunal concluded that the effect of the EJRA was “highly discriminatory”. Although the university had never properly attempted to measure the extent to which the EJRA resulted in more vacancies, Professor Ewart had done so and, on his statistical analysis, he found the increase in vacancies was only two to four per cent. The tribunal therefore concluded that: “The increase in the number of vacancies in support of the legitimate aim [was] trivial in comparison with the discriminatory effect”. The university appealed.
The EAT held that although it was undesirable for an employer to be faced with what appeared to be conflicting tribunal decisions relating to a particular policy, "the nature of the assessment that has to be undertaken by tribunals … is such 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”. The job of the EAT, in turn, was not to find a single answer, but to consider whether a particular decision was wrong in law.
In this case, it held that neither tribunal had made an error as the different conclusions were the result of differences in the evidence adduced and the focus of that evidence. For instance, the tribunal in the Ewart case had the benefit of a statistical analysis that was not available to the Pitcher tribunal, as a result of which it gave greater weight to other factors. Secondly, there were differences in the facts between the two cases – Professor Ewart’s extension was granted whereas Professor Pitcher’s was refused. Thirdly, the tribunals received different evidence as to the extent to which post-retirement benefits might mitigate the detriment arising from forced retirement.
It therefore dismissed both appeals.
The fact that two different employment tribunals could come to different conclusions about the same Employer Justified Retirement Age has caused consternation in some quarters. However, the different decisions in part reflect the different evidence put before the tribunals by the claimants as compared with the defence of the policy by the University in relation to proportionality. Perhaps this also reflects the maturity of the policy in each case. It also underlines the fact that there is rarely one right answer where litigation is concerned.