The evidential burden to show justification in discrimination claims (Pitcher v University of Oxford, University of Oxford v Ewart)

When an employer is seeking to establish objective justification of a policy that is prima facie discriminatory (i.e., demonstrate that it was a proportionate means of achieving a legitimate aim), evidence is generally required (rather than mere assertion). However, some matters will be so obvious that they will barely require evidence, and some evidence may be hard to come by (particularly soon after the implementation of the policy), and an employment tribunal should not require evidence from an employer which it cannot reasonably be expected to produce, according to the Employment Appeal Tribunal (EAT).

Pitcher v University of Oxford, University of Oxford v Ewart (EA-2019-000638-RN, EA-2020-000128-RN)

What are the practical implications of this judgment?

 Ever since the original age discrimination legislation was introduced in 2006, it has been accepted that an assertion by an employer that a discriminatory measure is justified is not enough; employers are expected to produce evidence of justification to convince the tribunal that the defence applies. However, in Homer in 2008, the EAT pointed out that ‘concrete’ evidence is not always required and, in appropriate circumstances (e.g., where the measure is relatively new), justification can be established by ‘reasoned and rational judgment’. In Cockram, in 2018, the Court of Appeal held that the detail and weight of the evidence required will depend on what proposition the employer is seeking to establish and some propositions are so obvious (e.g., that a rule excluding employees who retire under the age of 55 from the right to take unvested options under a long term incentive plan tends to encourage them to stay until 55) that they barely require evidence at all. In this judgment the EAT has now stated that:

• this principle does not just apply to establishing legitimate aims
• it applies generally when seeking to establish objective justification
• some matters will be so obvious (Cockram-obvious) that they will barely require evidence
• while the requirement to objectively justify the discriminatory measure arises from the start of its application, 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 employment tribunal should not require evidence from an employer which it cannot reasonably be expected to produce
• these observations do not detract from the requirements placed upon the employment tribunal, as laid down in Hardy & Hansons: if the employment tribunal’s assessment is to demonstrate the requisite critical and thorough evaluation, it will necessarily look for evidence rather than mere assertion (albeit that evidence may take the form of reasoned projection rather than demonstrable result) and will require a degree of cogency in the employer’s case.

These observations are of application in any case in which an employer is seeking to rely on justification; they are not confined to the age discrimination arena. Respondents should therefore bear this in mind when considering what evidence is required when they are seeking, in any case, to establish objective justification of treatment that is prima facie discriminatory.

As regards retirement policies in particular, the fact that the two employment tribunals in this conjoined appeal produced different results in respect of the exact same policy shows how difficult it can be to predict the outcome of justification arguments in this context. Practitioners should note that justification of a retirement policy is a tricky and unpredictable business, but this judgment also illustrates that producing more evidence to underpin the justification defence is likely to help the employer win.

Case details

• Court: Employment Appeal Tribunal
• Judges: The Honourable Mrs Justice Eady DBE, Mr DG Smith, Dr G Smith MBE
• Date of judgment: 27 September 2021

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