The recent EAT case of Pitcher v Chancellor Masters And Scholars Of The University of Oxford (EA-2019-000638-RN; EA-2020-000128-RN) provides interesting commentary on two important issues for employment lawyers:
- The extent to which the EAT will interfere with first instance decisions.
- The law on justification for direct age discrimination.
The appeal involved two linked cases both of which dealt with the same retirement policy, but each of which came to the opposite conclusion as to whether it could be justified. What makes this EAT decision so striking and unusual is that the EAT upheld both of these apparently contradictory conclusions.
Facts of the case
The first appeal related to Professor Pitcher, an Associate Professor of English Literature. At 67 he was compulsorily retired by operation of Oxford University’s “Employer Justified Retirement Age” (EJRA).
The second appeal featured Professor Ewart, Associate Professor of Atomic and Laser Physics, who had been able initially to extend his retirement age by application for an exception, but whose second application was refused, under the EJRA provisions.
The ETs in each case held that the EJRA had the following legitimate aims:
- Inter-generational fairness.
- Succession planning.
- Equality and diversity.
Although it did not achieve those aims of itself, it facilitated other measures taken to those ends by ensuring that vacancy creation was not delayed and that recruitment into senior academic roles could progress; from a more diverse cohort.
In Professor Pitcher’s case, the ET came to the conclusion that the EJRA could be justified by the University and that accordingly he had been fairly dismissed. In Professor Ewart’s case, to the contrary, the ET decided there was insufficient evidence that the EJRA really achieved the legitimate aims to a sufficient degree to outweigh the extreme severe discriminatory impact on him, and so found the dismissal unfair.
Role of the EAT
The EAT judgment, delivered by Eady J DBE, set out the law relating to its role and powers on appeal. From the relevant case law, it derived the following principles:
- Determination of whether or not discrimination can be objectively justified is an exercise which requires considerable insight and skill, and the EAT is entitled to carefully scrutinise whether the ET reached its decision by fairly assessing the evidence presented by the employer (Hardy & Hansons plc v Lax  EWCA Civ 846).
- The EAT should, however, be slow to substitute its own judgment where the ET had been presented with a mass of evidence to assess, and what was required was that, as Lady Hale had said, “we must be able to detect an error of law” (Lord Chancellor v McCloud  ICR 1489; Essop v Home Office  UKSC 27).
- Ultimately where the issue on appeal is objective justification, the test for interference by the appellate tribunal is one of perversity. There must be an “overwhelming case … that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached” (British Airways plc v Starmer  IRLR 863; Yeboah v Crofton  IRLR 634 CA).
Law on justification for direct age discrimination
The relevant legislation provides:
(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
97. Where the claim is one of direct age discrimination, however, sub-section 13(2) allows for a defence of justification:
(2) If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim.
(Section 13, Equality Act 2010.)
Eady J distilled the relevant case law down to the following:
- There are two broad types of legitimate aim: general policy objectives that might include social objectives and “inter-generational fairness”, or even “dignity”: by avoiding disputes about competency for older employees; and particular objectives relating to the circumstances of the specific business in question (Seldon v Clarkson  UKSC 16).
- The policy put in place to achieve these aims must however also be “appropriate and necessary” bearing in mind the gravity of the effect of the discrimination. The test of whether it can be justified is an objective one to be carried out by the ET without reference to the subjective assessment of the employer (Seldon; Hardy; Chief Constable of West Yorkshire Police v Homer  UKSC 15).
- “Appropriate” means that the policy must be capable of actually achieving the legitimate aim (Seldon; Homer).
- “Necessity” involves a focus on the balancing act; whether there were less discriminatory means of achieving the legitimate aim (Hardy; Seldon).
Conclusions of the EAT and commentary
The EAT noted that the evidence in each of the two original ET cases had been presented slightly differently, and related to slightly different circumstances. In Professor Ewart’s case there had been evidence that the rate of vacancies created by the EJRA was trivial. By contrast, in the case of Professor Pitcher the ET accepted that the policy was only one part of a wider scheme of measures that, in combination, were “appropriately” effective at achieving the said aims.
The EAT examined both cases to see how the law had been applied and concluded that it was properly taken into account in each. Ultimately, although different conclusions had been reached on proportionality, neither ET had actually erred in law. The nature of the proportionality assessment was such that two differently constituted tribunals, each directing itself correctly on the law, could properly come to different conclusions about the same policy.
The task of the EAT was not to strive for a single “correct” answer, but to concentrate on the detection, or otherwise, of an error of law.
This unusual outcome is a salutary reminder of the limits on the EAT when it comes to determinations of fact and objective justification. The EAT’s role is not to substitute its own view of the matter but to respect the fact that the ET had far more information at its disposal when it made the decision, unless that decision is shown to be based on an error of law.
Finally, it is also a good pointer to all employers to review their retirement policies to ensure that the legitimate aims are not just stated but are being effectively achieved and evidenced.