EAT: Eady J, Mr D G Smith, Dr G Smith MBE EA-2019-000638-RN, EA-2020-000128-RN, 27 September 2021

Guest blog by Ben Mitchell 11 KBW

In 1933 Erwin Schrödinger took up an academic post at the University of Oxford. This was two years before he created his eponymous thought-experiment, “Schrödinger’s Cat”. He was 48 years old. Too young, if he were teleported to today, to hit Oxford’s current Employer Justified Retirement Age (“EJRA”) of 67. However, had he had cause to consider the EJRA or, more precisely, the EAT’s substantial judgment addressing whether it constitutes age discrimination in Pitcher v University of Oxford, we may now have been able to consider the sequel thought experiment: Schrödinger’s Age Discrimination.
The EJRA is a relatively new policy which has also been amended a number of times in its first years of operation. It gives a standard retirement age but qualifies it with provision for employees to apply for extensions, to be considered and decided upon by a panel on a case-by-case basis. The policy, however, is clear that such extension are exceptions available only where there is a clear benefit to the University in granting the extension. It also makes clear that extensions could only be on fixed-term contracts.
The puzzle the EAT faced is one familiar to quantum physicists but uncomfortable to lawyers with an instinctive attraction to legal certainty. Two separate employment tribunals had considered whether the EJRA was justified or unjustified direct age discrimination and reached starkly opposite conclusions.
In one claim, brought by Professor Pitcher, the tribunal found for the University; the EJRA was less favourable treatment because of age, but it was justified as a proportionate way of achieving various legitimate aims, such as: (1) achieving inter-generational fairness; (2) simplifying succession planning; and (3) advancing equality and diversity (on protected characteristics other than age, of course). In its proportionality analysis the tribunal accepted the University’s contention that the EJRA gave a predictable retirement date that may be earlier than otherwise would have been the case and that this would contribute to the recruitment of a more diverse workforce. The tribunal accepted that the direct evidence of this impact on those legitimate aims was a little light but applied the principle in Air Products plc v Cockram, UKEAT/0038/14/LA [2018] IRLR 755, §§30-31, that it can be shown by reasoning and assertion, where a new policy has been introduced or the contribution relied on is “surely so obvious that it barely requires evidence at all”. The EAT accepted this at §110 saying “evidence of impact on legitimate aims may sometimes be hard to come by soon after the implementation of a particular measure, or, more generally, it may be the case that causative effect is genuinely difficult to isolate; an ET should not require from an employer evidence which it cannot reasonably be expected to produce.”
According to the tribunal in the other claim, however, the direct age discrimination was unjustified. That claim was brought by Professor Ewart (who worked in the same Physics Department that once hosted Schrödinger). The tribunal accepted the aims of the EJRA were legitimate but disagreed that the achievement of them by the EJRA was “Cockram-obvious”. It reasoned that the University had not evidenced the achievement of the legitimate aims and so had not shown that the direct age discrimination was justified. This was particularly as the Tribunal had found that the level of discriminatory impact caused by the retirement age that would need to be justified was severe:
“It is hard to think of a more severe discriminatory impact. This is a lasting and final impact on the basis that someone is highly unlikely to be able to return to an active research career at a university once dismissed at that age. Everyone sharing a particular protected characteristic is severely affected.” (quoted at §142 of the EAT judgment)
The tribunals reached their conflicting decisions based on different evaluations of the evidence (and some relatively minor differences in the evidence presented to them; §184), rather than on different views of the law. A tribunal’s analysis of the evidence is not something that the EAT may generally interfere with, as the EAT said:

“120. More generally, while a party may appeal on the basis that there was no evidence to support a particular finding (this would be an error of law, see Piggot Bros and Co Ltd v Jackson [1991] IRLR 309 at paragraph 17), the EAT cannot interfere on the basis that there was insufficient evidence or that the ET gave inappropriate weight to particular evidence.”

As both tribunals had an evidential basis for their conclusions the EAT saw no reason to interfere. Given the EAT’s appellate function, that outcome makes a lot of sense but it becomes uncomfortable when placed back in the real world and the University (and employers operating similar systems) needs to decide whether its EJRA is lawful.
The EAT acknowledged this problem:

“We can, of course, appreciate that it is undesirable for an employer to be faced with what appear to be conflicting ET decisions relating to a particular policy, but we have to keep in mind that our task is not to strive to find a single answer, but to consider whether either the Bedeau ET [in Professor Pitcher’s case] or the Anstis ET [in Professor Ewart’s case] erred in law.” (§183)

Ultimately the judgment it is a reminder that however much we strive for neat legal certainties, the Equality Act 2010 is not always based on universally verifiable conclusions of lawful/unlawful. The question of whether something is justified discrimination or not is often a question of degree. Rather than dealing in absolutes, the justice system assigns and relies upon expert decision-makers to make judgments when those questions of degree arise. Just like the uncertain predicament of knowing whether a cat in a box is alive or dead, predicting the outcome of a legal case often leads to the conclusion that it could go either way. So if there were a Schrödinger’s Age Discrimination thought experiment, it would simply remind us, as this EAT judgment does, that the outcome of legal cases often depends not just on the facts and whatever case law has gone before, but also on how effective the litigants are when it comes to persuading the judge to decide the questions of degree in their favour.

Professor John Pitcher: O Segal QC and M Islam-Choudhury, instructed by Debenhams Ottaway Solicitors

Professor Paul Ewart: A Sugarman and M Martin

The Chancellor, Masters and Scholars of the University of Oxford: S Jones QC and J Coyne, instructed by Worden Richmond Solicitors

 St John’s College: N Motraghi and M Stanley, instructed by Mills & Reeve LLP

post modified 15 January 2022