Thread by @JasonBraier

1/ Pitcher v Oxford Uni; Oxford Uni v Ewart: When 2 different ETs reach opposite conclusions about the proportionality of Oxford's retirement age policy, what is the EAT to do? Answer: find neither of them wrong! assets.publishing.service.gov.uk/media/6151968c…

#ukemplaw

2/ Alas with another Jewish festival approaching, I don't have time to give this 86 page judgment of Eady J my full attention, but it's certainly worth a read & at least the briefest of threads.

3/ The cases concern 2 associate profs & Oxford Uni's Employer Justified Retirement Age policy. Prof Pitcher was compulsorily retired aged 67, having failed to get an extension of his employment under the policy. Prof Ewart got 1 extension but not a 2nd, thus was retired also.

4/ In both cases the ET found prima facie direct discrimination. In Prof Pitcher's case, Watford ET found the EJRA provided proportionate justification. In Prof Ewart's case, Reading ET found the EJRA not justified.

5/ In part, I suspect that tends towards more successful industry by Prof Ewart's legal team in undermining the justification put forward by the Uni, though in part it also resulted from distinct approaches to the evidence needed to justify a pretty new policy.

6/ To a great extent, the ET decisions (& hence EAT decision) are pretty standard typical applications of the approach required by the case law to direct age discrimination re retirement.

7/ I don't intend in this speedy thread to go through the detail of that case law but do highly recommend Eady J's treatment of it as being a pretty useful textbook text to have at your fingertips - see particularly paras 95-113.

8/ The 1 point to highlight though is a new phrase: "Cockram-obvious". Given he was counsel for Oxford & he has a history of introducing useful shorthand phrases into our lexicon (see 'context factor'), I'm crediting @seanjonesqc with this one (if not him, he'll put me right)

9/ The phrase stems from treatment of Air Products v Cockram, the case in which the employer provided various investment options, but restricting them from becoming vested in the employees until they turned 55, to incentivise loyalty & retention to that age.

10/ In that case, the CA had held it appropriate for the ET to accept the assertion by the employer that this policy's purpose was to incentivise retention to age 55 & to disincentivise it afterwards (when the employee could benefit from the option & retire happily to Paradise).

11/ In the present case, there was a debate about whether this applied to justification or merely to establishing a legitimate aim. In finding the former, Eady J held some matters are so obvious they barely require evidence.

12/ Eady J also noted the need for a realistic approach by ETs to the extent of impact evidence in the early days after a policy is implemented - that ETs shouldn't require an employer to produce evidence it can't reasonably be expected to produce.

13/ Having said all that, Eady J was keen to emphasise also that Cockram-obviousness didn't take away from the traditional guidance in Hardy & Hansons v Lax that a thoroughly investigating ET should look for evidence over mere assertion (though that may mean projection sometimes)

14/ Ultimately, the claimants in each case placed different evidence before the ET as against the Uni's defence of the EJRA's proportionality & the EAT found each panel entitled to reach the conclusions that they reached on the basis upon which they reached them.

15/ The brevity of this thread perhaps does some disservice to the impressive submissions made by impressive counsel & the intricacies of Eady J's judgment, but sunset fast approaches and 218 paragraphs could end up as one hell of a thread!