When the same rules have different results

It is ten years since the ending of the national default retirement age, when age became one of the protected characteristics covered by the Equality Act 2010.

The Act was designed to safeguard people in the workplace against discrimination, harassment and victimisation, and figures from the Office of National Statistics show there are now some eight million people in the UK aged 50-64 who are economically active and a further 900,000 who are working past 64.

But behind the headline success of continuing employment for an ageing workforce, the number of claims for age discrimination has risen steeply in the past year.

Analysis of statistics from the Ministry of Justice shows the number of age discrimination complaints taken to employment tribunals during 2020 rose 74%, while the overall number of complaints made to employment tribunals decreased from 183,207 in 2019 to 180,430 in 2020.

One recent Employment Appeal Tribunal decision has highlighted the challenge of age-related employment strategies, with two separate claims of age discrimination by two professors at Oxford University resulting in radically different outcomes, despite apparently identical circumstances involving the same policy under the same employer.

Both Professor Paul Ewart and Professor John Pitcher were each asked to retire at 67, being the university’s mandatory retirement age, and each brought a claim of direct age discrimination and unfair dismissal.

But the individual circumstances saw one professor’s claim upheld while the other had his rejected, in the initial, separate hearings.  Both decisions went to appeal, where they were heard as a single, co-joined case.  Now, the appeal tribunal has confirmed both original decisions.

In this case, the distinction hinged on the different evidence presented by the two professors.

Despite the ending of the default retirement age, a mandatory retirement age is allowed where an employer can demonstrate that it can be ‘objectively justified’ and will enable a legitimate aim. The employment appeal tribunal set out three legitimate aims where a mandatory retirement age could be justified: inter-generational fairness, succession planning, and equality and diversity.

The first professor presented a survey of retirees which showed that a quarter would have continued for three more years if they had not been forced to retire because of the mandatory retirement age. The second professor’s statistical evidence showed that the rate of vacancies created by the mandatory retirement age was very small.

The figures from the first professor led the tribunal to decide that the mandatory retirement was necessary to provide opportunities for younger academics, while the second professor’s statistics resulted in the tribunal finding that the discriminatory impact of the mandatory retirement age was severe and was not significantly mitigated by the result.

“It’s down to proportionality, and this case shows how important it is to review each individual’s circumstances before requiring mandatory retirement,” explained Miss Amy Cusworth, employment expert with Rotherham solicitors Oxley & Coward LLP.

“While this involved older employees nearing retirement, age discrimination can affect all generations in the workforce, as different circumstances exist in every organisation. It may involve young people who find their lack of experience places them at greater risk of redundancy when times are hard; or a 40-something finding themselves considered ‘past it’ in a very youth-oriented working environment.

“But it is generally the older group who are most likely to suffer financial loss and take action when they lose their job, as it is typically harder for them to find alternative employment, and we have seen this in the figures for recent claims.”

They added: “There are many aspects to diversity in the workplace and making sure that the recruitment process and ongoing opportunities are equally accessible to all is very important.

“That’s not just because it makes for a more positive working environment, but because the financial and reputational loss involved in discrimination claims, where there is no cap on compensation, creates a serious financial imperative”.

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