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Differing decisions in two separate claims relating to Employer’s Justified Retirement Age policy upheld by EAT

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of Pitcher v Chancellor Masters And Scholars Of The University Of Oxford the EAT considered joined appeals relating to the application of the Employer Justified Retirement Age policy (“EJRA”) operated by the University of Oxford (“the University”) and, in the case of Professor Pitcher, St John’s College (“the College”).

The University introduced an Employer’s Justified Retirement Age (“the EJRA”) requiring employees to retire at the age of 67. St John’s College adopted the same EJRA. Both employers designed and adopted procedures allowing for employees to make an application to work beyond the EJRA of 67.

Professor Pitcher was as associate professor of English Literature, and employed jointly by the University and St John’s College. Oxford University and St John’s College refused Professor Pitcher’s application for an extension to work beyond the EJRA. Professor Pitcher’s employment terminated when he reached the age of 67 in accordance with the EJRA. Professor Pitcher brought age discrimination and unfair dismissal claims which were dismissed by the Reading Employment Tribunal.

Professor Ewart was associate professor of Atomic and Laser Physics. The University granted Professor Ewart a two-year extension beyond the EJRA age of 67. Professor Ewart then applied for a second time to extend his employment for a further three years under the EJRA procedure. The University refused Professor Ewart’s application and his employment came to an end on 30 September 2017 (on the expiry of the original two-year extension period). Professor Ewart brought claims of unfair dismissal and direct age discrimination which were upheld.

The EAT declined to interfere with either Tribunal’s decision. The EAT’s task (the decision stressed) was not to “strive to find a single answer” (on the lawfulness or otherwise of the EJRA), but to consider whether either Employment Tribunal had erred in law. “An error of law would arise if the conclusion reached was perverse,” the EAT said, “but if it was otherwise open to that ET, on the evidence before it, the fact that another ET reached a different decision will not give the EAT jurisdiction to interfere.”

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