Prof P Ewart v The Chancellor, Master and Scholars of the University of Oxford — 2019

Professor Ewart was subject to Oxford's EJRA retirement process twice. His first extension under the 2011 policy was granted in 2014 as a two-year fixed-term contract to 30 September 2017, but his application for a further extension under the 2015 policy was refused by the EJRA committee in December 2016. His appeal was dismissed in January 2018, and his employment ended on 30 September 2017 when the fixed term expired.

The tribunal accepted that the respondent relied on legitimate aims in principle, including safeguarding high standards, intergenerational fairness, succession planning, and equality and diversity. It did not accept the respondent's fifth pleaded aim, minimising the impact on staff morale, as a legitimate social policy aim. The tribunal held that the EJRA operated by creating vacancies at a predictable date, but that the respondent had not shown that the policy's discriminatory effect on staff aged 67 and over was justified.

On proportionality, the tribunal found that the respondent had not produced sufficient evidence that the EJRA materially contributed to the stated aims to an extent that justified the discriminatory impact. It noted the absence of any proper mechanism for measuring the number of vacancies created by compulsory retirement and said the respondent had never properly attempted to assess that effect. By contrast, the claimant's statistical analysis was said to point to only a small increase in vacancy creation, and the tribunal regarded the effect on older staff as severe because everyone who reached the relevant age was dismissed, subject only to an extension process focused largely on the respondent's needs.

The tribunal also found that the 2015 second-extension rule was itself discriminatory and unjustified. It said that a further extension would only be granted if unforeseeable circumstances had frustrated the purpose of the original extension, but the claimant had already vacated his substantive post and, on the respondent's case, had secured or was expected to secure funding for post-EJRA work. The tribunal held that adding the unforeseeable-circumstances requirement did not further the EJRA's aims in a proportionate way.

The age discrimination claim succeeded on all five pleaded acts, and the tribunal found that the claim was in time because the respondent's conduct was a continuing act; alternatively, it would have extended time as just and equitable. The unfair dismissal claim also succeeded. The tribunal held that the dismissal was not shown to be for some other substantial reason within s.98 ERA 1996 once the age discrimination finding was made, and it identified further unfairness in the second-extension process, including the claimant not being told of an unwritten rule against second extensions and the committee finding delays foreseeable without investigating the reasons for them. A remedy hearing was listed for later, so no monetary award was determined in this decision.