EJRA in HE risky after EAT rules on Oxford University’s policy

Out-Law News | 12 Oct 2021 | 9:20 am |

Helen Corden tells HRNews why universities should think carefully before reintroducing a compulsory retirement age

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  • Transcript

    The Employment Appeal Tribunal has handed down its ruling on whether Oxford University’s compulsory retirement policy was discriminatory in two separate cases involving two of the University’s. The judgements are useful, particularly for those universities considering reintroducing similar policies after shelving them a decade ago when age discrimination was outlawed. In these cases the EAT dismissed both appeals against two contrasting tribunal judgments one of which went for the University and the other against.

    This is long running litigation which we have been following closely over the years. A reminder. The first case concerned the challenge to the policy brought by Professor John Pitcher, who taught English at Oxford and was forced to retire at age 67. He lost his claims for unfair dismissal and direct age discrimination, with the employment tribunal and then the EAT finding the university’s Employment Justified Retirement Age policy exists to improve career progression and diversity and was not unlawful. The second case was brought by Professor Paul Ewart, the former head of atomic and laser physics at Oxford’s Clarendon Laboratory, who has argued he should have been allowed to stay in his post to complete important research. The policy does allow academics to work beyond 69 in exceptional cases, for example to finish important research or see a project through to its conclusion, and with those arguments he was successful at both tribunal and the EAT. 

    The cases are covered by Personnel Today which gives the background to this. Oxford introduced a retirement age of 67 following a consultation process and review in 2011. The broad justification for it centred on three 'legitimate aims', namely inter-generational fairness, succession planning; and promoting equality and diversity. In both cases, the fundamental issue was the proportionality of compulsory retirement as a means of achieving the legitimate aims. The University’s case was that its policy facilitated those aims by not delaying the creation of vacancies, so a younger, more diverse cohort of candidates could be considered for senior academic roles.

    The cases are complex and turn on their own particular facts, with the EAT finding for the University in the Pitcher case and against it in Ewart, notwithstanding it was the same policy being applied to both of them. The EAT said it appreciated that it was undesirable for an employer that two tribunals came to different conclusions based on the same policy but that was perfectly possible given different evidence was heard in each case and the focus may have been different in each. So, it goes to show how difficult and finely balanced these decisions can be and how tricky it is for employers trying to judge this for themselves.

    In the university sector, the vast majority of universities don’t operate a compulsory retirement age but the EAT’s decision in Pitcher, which the University won, has sparked interest in the sector and we know there are some universities who are considering reintroducing one. Helen Corden knows the sector very well and joined me by phone to discuss the challenges facing universities who may choose that route:

    Helen Corden: “I think some universities will consider reintroducing it because I think a compulsory retirement age is under constant review by many universities. For many of the reasons that Oxford have a compulsory retirement age, and that's mainly around succession planning, and wanting to increase the diversity of more senior staff, for example, so many universities do keep this issue under consideration and they will have looked at this case with interest to see whether this might strengthen the position in terms of introducing a compulsory retirement age. I think the difficulty with introducing it now is that they would really have to have some good evidence as to why it needs to be introduced now and really delve into detail and be able to articulate what their legitimate aims are and why, at this particular point in time, it's even more important, or more necessary, to introduce the retirement age. So they will have to, for example, undertake a statistical analysis of their workforce, looking at the age demographics, the gender, the ethnic minority breakdown of their staff, whether there are in fact issues around succession planning, and bring all that together to produce some sort of business case as to why they would need to introduce a compulsory retirement age. Alongside that, as we've seen in the Oxford case, Oxford carried out quite an extensive consultation process with their staff, the unions, the governing body, etcetera when they were introducing this, and there was actually a vote on whether it should be introduced or not. I'm not saying that other universities would need to go as far as having a vote but they would certainly have to have carried out that extensive consultation and take on board, for example, any alternatives that may be proposed.”

    Joe Glavina: “Oxford have had this policy in place since 2011 and they were was simply defending the continuation of the practice. Contrast that with universities out there who may be seeking to re-introduce a retirement age and so coming at this from a very different direction, if you like. Is that significant?”

    Helen Corden: “I do think it is significant because Oxford introduced this following the removal of the default retirement age. So they had their reasons as to why they were doing it at that time. Other universities obviously haven't had the benefit of any compulsory retirement age or default retirement age for a number of years now so they'd really have to show why they were introducing it now and has the issue, for example, become exacerbated in terms of succession planning over the over the previous 10 years or so, that they haven't had any default retirement age in place”

    Joe Glavina: “Central to whether policy is justified is the issue of proportionality. So universities need to think about ways to achieve their aims – diversity, succession and so on – in other ways. What other ways are there?”

    Helen Corden: “Again, I think it's a really important point for universities to consider, whether there are any less discriminatory means of achieving their aims or put another way any alternatives to introducing the compulsory retirement age. So, for example, we know that some universities have introduced retirement policies which are akin to flexible working policies where they wind down towards retirement, they can work on a more flexible basis, a more part time basis, and that's really to encourage people who are heading towards retirement to take up that option and wind down in that way. Other universities, for example, have looked at financial inducement schemes in order to encourage people to retire. The one word of caution in relation to these alternatives is that universities need to be able to ensure that those sorts of schemes are not discriminating against other younger staff. So again, in themselves, those alternative policies may need to be objectively justified.”

    The EAT’s judgements in those two cases are called Pitcher v Oxford University and Oxford University v Ewart. If you want to read them for yourselves you can – we have put a link to them in the transcript of this programme.

    LINKS
    - Link to EAT judgments: Pitcher v Oxford University and Oxford University v Ewart