REWARD
The intricacies of dismissal and discrimination
NicolaMullineux, senior employment specialist for Peninsula , discusses three court cases that centred on issues surrounding dismissal and discrimination
Pitcher v The Chancellor Masters and Scholars of The University of Oxford and Another and The Chancellor, Masters and Scholars of The University of Oxford v Ewart The employment appeal tribunal (EAT) has upheld contrasting decisions on the effect of the same employer’s compulsory retirement age (CRA) on different people. Implementing a CRA may be lawful and won’t amount to age discrimination when used correctly. The EAT found in Pitcher v University of Oxford and University of Oxford v Ewart that having a pre-set retirement age was a proportionate means of achieving three legitimate aims – to support inter-generational fairness, for succession planning and to promote equality and diversity. The employer justified retirement age prevented delaying the creation of vacancies, so a younger, more diverse cohort of candidates could be considered for senior academic roles. However, it’s important to understand that this must be applied fairly to ensure there is no risk of discrimination claims. In these cases, two Oxford University professors were subject to the CRA of 68. Both Professor Pitcher and Professor Ewart, raised claims to the employment tribunal (ET) that the CRA resulted in their unfair dismissal and direct age discrimination. In separate tribunal hearings, an ET decided that Pitcher was not unfairly
dismissed nor discriminated against because of his age. However, the operation of the same CRA was found to be discriminatory towards Ewart and led to his unfair dismissal. The EAT then declared that both decisions on the discrimination angle should stand. Implementing a CRA may be lawful and won’t amount to age discrimination when used correctly When an employer is accused of direct age discrimination, the law gives them the opportunity to objectively justify their practice. To do this, the employer must point to the legitimate aim of the practice and show that there was no less discriminatory way of achieving that aim. This second element, the ‘proportionality’ test, will be entirely dependent on the specific circumstances and must be supported by robust evidence. It was held that the University had legitimate aims, for example, succession planning. In Pitcher’s case, a survey of retirees was relied upon, which had indicated that a quarter of those surveyed
would have remained in position for a further three years if it had not been for the operation of the CRA. It was not, therefore, perverse of the ET to find that the current turnover rate would have been significantly lower if the CRA was not in place. In contrast, in Ewart’s case, the rate of vacancies that the CRA created was trivial at 2 – 4%; it was not sufficient to outweigh the severe discriminatory impact of the CRA. The EAT’s decision shows that it is possible for different ETs to come to contrasting decisions on the same topic, but with neither being incorrect. Decisions will be heavily evidence based, and each ET was entitled to come to the decision it did. Ultimately, Oxford University can continue with its CRA policy, however, it is also said to be reviewing its approaches to determine whether this is the best solution moving forwards. Professor Ewart confirmed that his tribunal claim was solely about establishing the right to work and allowing him and his colleagues to continue with their important research, instead of being forced into retirement. Implementing flexible working arrangements, including phased retirement plans, allows employees to continue their work whilst nurturing new talent into senior roles on a part-time basis. This may provide a win-win situation for all involved. Organisations can adopt a similar approach to compulsory retirement if they
| Professional in Payroll, Pensions and Reward | December 2021 – January 2022 | Issue 76 26
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