This article was first published on Lewis Silkin’s age discrimination site.
Professor Ewart worked as an associate professor in the department of atomic and laser physics at the University of Oxford. He was involved in developing new applications of laser technology, which looked at precise measurement of temperature and quantification of pollution in the atmosphere. He was internationally renowned and the performance of his duties in the department was not in question.
The University operates an Employer Justified Retirement Age (‘EJRA’) policy. This requires all its academics and researchers to retire on 30 September (the end of the academic year) preceding their 68th birthday unless they are able to make a successful application for an extension.
Professor Ewart was initially due to retire on 30 September 2015, but was granted a two-year, fixed-term extension by the University. During 2015, the EJRA went through a transformation, which meant that extensions would be granted ‘only in the most exceptional circumstances’. The second iteration of the EJRA also stated that applications for second extensions would only be granted ‘if it [is] essential to address unforeseeable circumstances that have frustrated the purpose for which the original extension was granted.’
Professor Ewart made a second application seeking to extend his position until September 2020 on the basis of a 50% fixed term contract. He argued that five of his eight research projects were subject to unforeseeable circumstances. This second extension was considered in December 2016 and Professor Ewart was told that he was unsuccessful in February 2017. His appeal was rejected, so he was forced to retire at the end of his first extension on 30 September 2017. He brought complaints of unfair dismissal and direct age discrimination.
In 2011, the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 started to phase out the UK’s default retirement age (which had been introduced in 2006). As a result of these changes, any policy which required all workers to retire past a certain age became automatically discriminatory and would only be lawful if it was a proportionate means of achieving a legitimate aim.
The University of Oxford had previously faced a legal challenge to its EJRA procedure, in a 2019 case in which a professor claimed age discrimination. The ET on that occasion concluded that the aims of the EJRA procedure were legitimate and that the policy itself was proportionate to achieving the intended aims.
In Professor Ewart’s case, the University accepted that he was dismissed because of his age but claimed, like in the previous case, that this was justified because the use of the EJRA was a proportionate means of achieving a legitimate aim. The University highlighted five aims of the EJRA policy, of which the ET accepted the following four as legitimate:
Professor Ewart accepted that some of the aims of the policy were legitimate, but argued that the EJRA was a disproportionate means of achieving any of them.
Employment Tribunal’s decision
The ET commented that ‘there can hardly be a greater discriminatory effect in the employment field than being dismissed simply because you hold a particular protected characteristic’. The EJRA was a broad policy that affected every academic and researcher at the University approaching 67 years of age. This was usually the end of the careers of prominent academics who had often been performing excellently, and the ET found it ‘hard to think of a more severe discriminatory impact.’
As such, the ET considered that, in order to be proportionate to the clear and extensive discrimination, the EJRA needed to be an extremely effective way of achieving its legitimate aims. The University could only show that it was a proportionate means of achieving any of those legitimate aims if it was ‘so obvious that [the University of Oxford] barely require evidence at all’, or through the use of supporting evidence.
The ET concluded that because it was not immediately obvious that the policy was beneficial, the University would need to show some statistics evidencing their claims that the EJRA was effective in achieving the stated aims. In fact, the only concrete supporting evidence available to the ET was that produced by Professor Ewart, which showed that the EJRA only produced a 2-4% increase in the rate of production of vacancies. Because the University could not provide any cogent opposing statistics, the ET concluded that such a minimal increase in the number of vacancies could not be regarded as proportionate to achieving any of the stated legitimate aims: ‘the increase in the number of vacancies in support of the legitimate aim is trivial in comparison with the discriminatory effect’.
The ET therefore upheld Professor Ewart’s claim of direct age discrimination.