Never ignore the litigation risk – Part 2 

by Shoosmiths LLP

Published: January, 2022

In the second part of this article, we look at the problems that can arise through the interpretation of evidence by the tribunal and look at ways to mitigate litigation risk by ensuring that the story of the case is presented as clearly as possible.


As we outlined in the first part of this article, in 2021 the Employment Appeal Tribunal (EAT) upheld two opposing employment tribunal decisions on the objective justification of a compulsory retirement policy as operated by the University of Oxford.


The EAT acknowledged that the conflicting Tribunal decisions are undesirable for employers and in this article we consider the impact of this case for employers when defending against discrimination claims based on similar policies.


Background

Both professors were subject to mandatory retirement at the age of 67. However there were procedures in place through which employees could make an application to work beyond that age.


Professor Pitcher

Professor Pitcher was an Associate Professor of English Literature and was employed jointly by the University and St John’s College. Professor Pitcher’s application for an extension beyond the mandatory retirement age of 67 was refused by both the University and St John’s College. This was on the basis that it was not considered that such an extension would create a sufficiently clear advantage to outweigh the opportunities arising from creating a vacancy. Consequently Professor Pitcher’s employment terminated when he reached the age of 67.


Professor Pitcher brought claims for direct age discrimination and unfair dismissal, which were subsequently dismissed by the Employment Tribunal. Both the University and St John’s College accepted that the decision to terminate Professor Pitcher’s employment in accordance with the mandatory retirement age was less favourable treatment based on his age. However, they argued that the policy was a proportionate means of pursuing a legitimate aim which included promoting inter-generational fairness (for younger academics’ career progression); succession planning; and promoting equality and diversity. The Tribunal accepted these aims were legitimate and Professor Pitcher’s claims failed in the Tribunal.


Professor Ewart

Professor Ewart was an Associate Professor of Atomic and Laser Physics. The University granted Professor Ewart a two-year extension beyond the mandatory retirement age; he was granted a two-year fixed contract under which he continued to work for the Department of physics on a part-time basis (80%) and relinquished other positions. This extension was granted on the basis that it was necessary for succession planning given the specialist nature of Professor Ewart’s work. Professor Ewart applied for a second extension for a further three years under the policy, but this application was rejected with Professor Ewart’s employment terminating on the expiry of the original two-year extension, aged 69.


Professor Ewart brought claims of unfair dismissal and direct age discrimination in the Employment Tribunal. The University accepted once again that Professor Ewart’s dismissal was less favourable treatment on the basis of his age but relied on the similar legitimate aims in the Pitcher claim.


Professor Ewart’s case was heard by a different Employment Tribunal which reached a different conclusion to that of the Pitcher case. The Tribunal upheld Professor Ewart’s claims for unfair dismissal and direct discrimination and considered that the EJRA was not a proportionate means of pursuing legitimate aims.


Both Professor Pitcher and the University appealed the decision to the EAT.


EAT decision

In considering the two appeals, the EAT emphasised that its purpose was not to interfere with either Tribunal decision. The EAT’s role was not to find a single answer but to decide if the Tribunal decisions were wrong in law. The EAT ultimately found that in determining the question of objective justification, it was possible for Tribunals to reach different conclusions on the same measure adopted by the same employer, in this case the mandatory retirement age. This could result in a different decisions being reached based on the way evidence is presented.


The EAT acknowledged that such a finding is undesirable for employers where there are apparent conflicting decisions in relation to the same policy. However, neither tribunal had erred in law and had come to their separate conclusions based on the evidence placed before them.


In light of the EAT decision, what does this mean for employers who are defending against proceedings based on the same or similar measures?


The EAT decision is an important reminder of having good evidence in Tribunal proceedings. In the two cases, the EAT noted that there were material differences between the evidence and arguments presented. In particular, with Professor Ewart, he relied on statistical analysis of data about the extent to which the University’s policy impacted the creation of vacancies. In considering the evidence around the detriment suffered by those to whom the policy applied, the EAT found that the impact on both professors was not the same. The impact on Professor Ewart, as a research scientist dependent on project team and facilities was greater than the impact of Professor Pitcher. As such, this led to a different focus by each Tribunal on the question of detriment.


Practical tips (part 2)

These two cases, whilst based on similar facts demonstrate the unpredictability of litigation. There are a number of key takeaways for employers to consider in light of the EAT judgment when defending employment proceedings:


  1. Employers should continue to review evidence throughout any proceedings to ascertain if this changes an employer’s strategy in defending claims. It is worth highlighting that where a scheme is relatively new, as in this retirement policy, evidence may be hard to come by. The EAT noted that a Tribunal should not require evidence to be submitted in respect of which an employer cannot be reasonably expected to produce.
  2. Employers should not seek to solely rely on what has happened before. A slight difference in factual circumstances can be significant – every case should be considered on its own merits and the impact that any particular policy has on the relevant individual(s).
  3. One size does not fit all and Tribunals will consider and reach conclusions based on the evidence and individual facts.
  4. In considering introducing a compulsory retirement age, employers will need to demonstrate to a Tribunal that they have strong justification to do so. The discriminatory impact of a policy will not outweigh the benefits of such justification.
  5. The way in which evidence is presented to the tribunal must be consistent and clear. While each witness must give their own evidence and is responsible for telling the truth under oath, it is vital that evidence is presented in a way that does not confuse the tribunal or easily provide for an interpretation that does not reflect the true position.

 



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