Four former members of staff at the University of Oxford have won their employment tribunal case against the university policy of forced retirement at the age of 68. As the Telegraph reports, an employment tribunal has ruled that Oxford’s “Employer Justified Retirement Age” policy had a “highly discriminatory effect” which was not justified. We’ll consider the implications for the sector as a whole.
Oxford’s policy is a controversial one and has generated a lot of litigation over recent years which has attracted a lot of press interest across the UK. Oxford lost a previous case to physicist Paul Ewart, who received £30,000 in damages and was reinstated to his former position. However, Shakespearean scholar John Pitcher, who also claimed age discrimination and unfair dismissal because of the policy, was unsuccessful. In this case the four successful claimants all left the university between 2019 and 2021 as a direct result of the policy, although some went on to new roles rather than retiring.
Oxford has operated its policy since 2011 when the default retirement age was abolished in the UK under the Equality Act and it is set out clearly on its website. Over the years they modified it several times, with the retirement age increased from 65 to 68 and staff at lower grades removed. In this latest litigation Oxford argued the policy was proportionate because of its aims of ensuring inter-generational fairness, refreshing the workforce, facilitating succession planning, and promoting equality and diversity. However, after reviewing the evidence the tribunal decided the policy had only contributed to this in a “very small” way.
Times Higher Education reports on the evidence put forward by Oxford to justify its policy, evidence that may be of interest to other universities. On whether the EJRA had created new opportunities, the tribunal said Oxford had “not made any attempt to measure the effect of the EJRA on actual vacancy creation across the initial 10-year period” which, they said, was “unfortunate”. Various mathematical models had been presented to show the impact of the policy. One claimed to show that the EJRA accounted for 8% of the available vacancies for professors and 5 per cent of those for associate professors, meaning it had no impact on nine in 10 vacancies that arose. On diversity, the tribunal said Oxford’s case was “significantly weakened by any lack of reliable statistics outside diversity of sex”. Overall, it found Oxford had not shown that the EJRA is a proportionate means of achieving a legitimate aim.
The case shows it is very difficult for universities to operate a policy so what is the impact of the ruling on the sector as a whole? Earlier Rebecca Stephen joined me by phone to discuss it:
Rebecca Stephen: “Obviously, we knew that these cases were very fact specific. Previously we had the two decisions where one went one way one went the other and the Employment Appeal Tribunal didn't interfere with either but here, again, we've had four individuals who have been successful, where it's been held that that compulsory retirement age can't be justified. So whilst it is fact specific, I really do think this case demonstrates just what a high hurdle it is to satisfy and the burden is very much on the employer if they want to justify that that EJRA. I thought it was quite striking, actually, one of the comments in the case, the employment tribunal said that, you know, having an EJRA, on the face of it, was about the most extreme discriminatory impact possible in the realms of employment so I think that's clear - the tribunal are looking for really convincing evidence if you're going to justify it and as is often the case with these, where you're looking at objective justification, the tribunal accepted Oxford had lots of legitimate aims, good reasons as to why they might want to look at ensuring this through career progression, improving equality and diversity, all of those were really good, legitimate aims that the tribunal accepted but it was all about that proportionality perspective and having really good statistical evidence and showing why it was necessary to have such a draconian sort of guillotine, if you like, that when you hit this particular age that's it and you're out, and the alternatives that Oxford put forward were held not to be proportionate. So, whilst it's fact specific, I think the summary has to be it's very risky, and it's difficult to justify.”
Joe Glavina: “As I understand it, Rebecca, not many universities out there operate a forced retirement policy like Oxford’s but, that said, probably every one of them wants to address their succession planning which, of course, is this type of policy is designed to help with.”
Rebecca Stephen: “Yes, so I think I would say the majority in the sector don't have any EJRA. I think it is unusual and, certainly after this line of cases, I don't think there'll be any greater appetite than there was before to start introducing one. However, that's not to say that this isn't an area that that, you know, lots of our university clients are thinking about, you know, all of those legitimate aims, they're interested in ensuring the career progression, the improvement of equality and diversity, succession planning, etcetera. So, there are things that people are doing. So, for example, I know that lots of universities have these sort of more flexible sort of retirement policies and often they're led by the individual. An individual will request a sort of a tapering down of their working arrangements and I think they can be very helpful and very successful. They enable the individual to feel that their career is ending in the way, and the manner, in which they would like it to and, at the same time, moving to more part time working, reducing hours over a period of time does itself create those opportunities and those vacancies. Now, obviously employers will need to look at it, you know, that may take some time, and look at the impact and is that doing enough or is there more that we can do? But certainly we've seen some success in those and it tends not to lead to dispute because it tends to be, you know, by agreement and sort of employee led.”
It’s important to say that whilst Oxford University lost at the employment tribunal they say they are reviewing the judgment and may appeal it. Meanwhile, the two earlier cases brought against Oxford - Ewart and Pitcher - are ones we reported at the time and Helen Corden told this programme why universities should think carefully before reintroducing a compulsory retirement age. That programme is ‘EJRA in HE risky after EAT rules on Oxford University’s policy’ and is still available for viewing on the Out-Law website. We’ve put a link to it in the transcript of this programme.
LINKS
- Link to HRNews programme: EJRA in HE risky after EAT rules on Oxford University’s policy’
