Age discrimination justifying a compulsory retirement age

Pitcher v Chancellor Masters and Scholars of the University of Oxford

This case involved a claim for age discrimination.  The University of Oxford ran an employer justified retirement age (known as EJRA).  As many of you will be aware, since the age discrimination legislation came into effect well over a decade ago, compulsory retirement ages will generally give rise to a claim for discrimination unless in unusual circumstances an employer can justify retiring certain categories of employees at a certain age.

In this case the Employment Appeal Tribunal (EAT) was examining two conflicting decisions of the lower Tribunals, one of which found the retirement age was objectively justified, and the other which found that it was not.

Because there was no error in law, the EAT upheld both decisions. Given the cases will always be case fact specific, the EAT couldn’t see an error of law and it saw no reason to interfere with the decisions.

The concept of ‘Objective Justification’ in discrimination law is a little complicated.  Under the Equality Act 2010, some forms of indirect discrimination can still be justified on the basis of Objective Justification. Less favourable treatment on the grounds of prohibited characteristics will only be objectively justified if it can be shown that the treatment (1) has a legitimate aim, (2) it is necessary to achieve that aim, and (3) it is an appropriate way of achieving that aim.

In this case the EAT gives some further guidance.  It confirms that aims such as “promoting inter-generational fairness”, “facilitating successor planning” and “promoting equality and diversity” can all fall within the category of legitimate aims.   The EAT also stressed the importance of statistical evidence to be adduced by the employer to demonstrate the achievement of legitimate aims being identified.  Such data could involve historical data but, where that was not available, projections based upon such past data such as workplace surveys could be used.  It also said that Tribunals will consider what steps are taken to reasonably mitigate the discriminatory effects of the retirement age and gave examples of potential extension provisions or the availability of post retirement opportunities.


Enforcing an EJRA is notoriously difficult and risky.  The case only goes to show the high burden for employers.  Where certain jobs/professions require a high degree of physical or mental ability and there is clear evidence that that ability declines at a certain age, then it may be possible to justify in EJRA, but it is rarely encountered in the motor industry in our experience.

The test for Objective Justification however is also used in other areas of indirect discrimination, so the case provides very useful guidance on the evidence to support any policy, practice or criteria that an employer has that indirectly discriminates, but which the employer still considers is justified and necessary.