CM May 2020

HR MATTERS
AUTHOR – Gareth Edwards
Compulsory Retirement unjustified
In this case the
University was
successful in showing
it had legitimate aims
for the EJRA policy, for
example that it allows
for younger and more
diverse academics to
progress in their careers
by creating new job
vacancies.
MEANWHILE, in Ewart v University
of Oxford, an Employment Tribunal
(ET) has held that Oxford University’s
compulsory retirement age policy could
not be objectively justified as it was not
a proportionate means of achieving
a legitimate aim. The University had
therefore unfairly dismissed Professor
Ewart and directly discriminated against
him on the grounds of his age.
Since 2011 the Oxford University had
in place an Employer-Justified Retirement
Age Policy (EJRA) policy that required
academics to retire before their 69th
birthday. Ewart was being forced into
retirement and brought a successful
claim against the University for age
discrimination and unfair dismissal in
a case that has highlighted the risks for
employers who set a retirement age for
employees.
Unlike other forms of direct
discrimination, direct age discrimination
can be justified on the basis that it is
a proportionate means of achieving a
legitimate aim (and goes no further than
necessary to achieve that legitimate aim).
In this case the University was
successful in showing it had legitimate
aims for the EJRA policy, for example that
it allows for younger and more diverse
academics to progress in their careers by
creating new job vacancies. In fact, the
University had successfully justified the
policy in a different age discrimination
case.
However, in this case, the ET held
that the University had not shown
sufficient justification for the policy's
discriminatory effect with regards to
its aims. For instance, Ewart provided
statistical evidence that suggested that
the EJRA only created two- to four
percent more vacancies than would have
otherwise arisen had the policy not been
in place. This was found to be trivial in
comparison with the discriminatory effect
of terminating someone's employment
solely due to their age.
This case highlights the difficulties
in justifying a contractual retirement
age, which may also be reflected in the
fact that Oxford is now one of only two
Universities in the UK to maintain one.
Holiday pay reference period set to increase
CHANGING tack completely, the holiday
pay reference period is increasing.
Currently, when employers calculate
holiday pay for those staff without fixed
working hours, for example casual
workers, the current reference period is
the last 12 worked weeks. But from 6 April
2020, the holiday pay reference period
is increasing so that the last 52 worked
weeks will need to be taken into account,
for those staff who have at least 52 weeks
continuous service.
The new reference period will operate
in a similar way to the current 12-week
period. Employers will need to look back
across the last 52 weeks that the staff
member has actually worked and weeks
in which no pay was received will not
be counted. Where there are fewer than
52 worked weeks to take into account,
the reference period is reduced to the
lower number of weeks worked and
paid overtime (if contractually obliged
or voluntary but sufficiently regular
and considered to be normal pay) work
during the reference period must also be
included in the calculation.
The 52-week reference period will
doubtless provide a more accurate
calculation for holiday pay as it will be
less exposed to short term variations in
pay.
Gareth Edwards is a partner in the
employment team at
VWV. gedwards@vwv.co.uk.
Advancing the credit profession / www.cicm.com / May 2020 / PAGE 43