When the same rules have different results – retirement and age discrimination

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It’s been ten years since a national default retirement age existed and when age became a protected characteristic 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 the age of 64.

However, although the headline success of continuing employment for an ageing workforce is evident, 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%, despite the overall number of complaints made to Employment Tribunals showing a slight downward trend.

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

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

But the individual circumstances saw one professor’s claim upheld whilst the other had his rejected, in the initial, separate hearings. Both decisions went to appeal where they were heard as a single case. Now, the Employment Appeal Tribunal (EAT) 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 EAT 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.

Proportionality appears to have been the key factor in this decision and the case shows how important it is to review each individual’s circumstances before requiring mandatory retirement.

Whilst this case 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.

That said, it is generally older employees 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.

Therefore, the importance of creating a positive working environment through promoting diversity in the workplace and developing robust recruitment process, as well as by providing ongoing opportunities that are equally accessible to all, cannot be emphasised enough.

If you have any queries regarding this or any other employment matter, please do not hesitate to contact a member of the team.