The perfect answer to this question is demonstrated by a case update I received from the Employment Lawyers Association, referenced below. The same employer was found to have objectively justified its mandatory retirement age in a case brought by one its employees, but not in a case brought by another of its employees.
What was found to be proportionate in one case, was found to be disproportionate in another, on the evidence presented to the tribunal. So often our job is to look behind the questions, resisting straight yes or no answers, and to investigate the facts and circumstances, to advise you on risk and likely outcomes. Challenging and interesting, but not easy!
In Pitcher v Chancellor Masters And Scholars Of The University Of Oxford and anor and another case, the EAT has upheld the decisions of two different employment tribunals, one finding that the University of Oxford’s mandatory retirement age was objectively justified, the other finding that it was not. The nature of the proportionality assessment that a tribunal must undertake when considering whether direct age discrimination is objectively justified means that it is possible for different tribunals to reach different conclusions even when considering the same measure adopted by the same employer in respect of the same aims. In the two cases, both brought by professors who had been refused extensions under the retirement policy, the presentation of the claims and the evidence before the tribunals differed in significant respects.