Staff Handbooks – Does One Size Fit All?
Employers used to be able to force workers to retire at 65 (known as the Default Retirement Age),
however in April 2011 this piece of law was removed. This means that employers can keep working beyond 65 if they need or want to.
It is possible for the tribunals to uphold two different decisions on an employer’s policy?
According to the Employment Appeal Tribunal in the case of Pitcher v Chancellor, Masters and Scholars of the University of Oxford (2021) this would appear to be so.
Prior to the repeal of the default retirement age on 6 April 2011, Oxford University had in place a contractual default retirement age. Following this repeal, however, Oxford University began operating an Employer Justified Retirement Age (EJRA). The retirement age under the EJRA was 67. The aims of the EJRA were to include maintaining opportunities for career progression and also to facilitate succession planning as well as promoting equality and diversity and inter-generational fairness. There were exceptions to this by way of an extension procedure which are granted in exceptional circumstances.
The University had two professors, Professor Pitcher who was retired through operation of the EJRA at the age of 67. Although he applied for an extension, this was refused and he subsequently brought claims for direct age discrimination and unfair dismissal. Under the facts the Employment Tribunal dismissed his claims and Professor Pitcher subsequently appealed to Employment Appeal Tribunal.
Professor Ewart, also a professor at the University but in a different department, was successful in obtaining an extension from the EJRA but his application for a subsequent extension was refused and he was retired. He also brought claims against the University for direct age discrimination and unfair dismissal. A different employment tribunal panel upheld both of Professor Ewart’s claims as it did not believe that the University had justified its decisions given the facts of the case. The University appealed against the age discrimination decision to the Employment Appeal Tribunal.
Although the Employment Appeal Tribunal acknowledged that for an employer to be faced with conflicting decisions by the Employment Tribunals relating to decisions made under a particular policy, it is not the role of the Employment Appeal Tribunal to ensure that a single answer to the policy is given, but rather whether making their decisions, to determine if either of the Employment Tribunals had erred in law. If neither Tribunal had erred in law, then the Employment Appeal Tribunal confirmed that is open to those Tribunals, based on the facts in before them, to reach different decisions.
The two differing decisions made by the employment tribunals against a single employer regarding the same policy, only serves to reinforce the need for employers to be certain that the legitimate aims of such policies can be justified. As such, factual evidence and mitigations that are in place will of course be relevant in ascertaining whether the legitimate aims are justified. It is therefore imperative that employers understand their policies and the justification of the legitimate aims that they are trying to achieve when enforcing such policies on a case by case basis. Thus, one size does not fit all!
For all of your employment law and HR needs Annalie King, Employment Consultant Solicitor at Kerseys Solicitors is a click away or call away. You can contact Annalie on Ipswich 01473 213311 or Colchester 01206 584584, email [email protected] or visit our website and click “Call Me Back”. We will be happy to contact you at a time that is convenient.