Posted by Malcolm Gregory, Partner
Academia, Oxford University & Retirement
Royds Withy King’s Employment law expert Mark Emery examines potential issues the Oxford University’s Employer Justified Retirement Age (EJRA) Policy may present.
The abolition of the statutory default retirement age on 6 April 2011 did away with one of the last remaining institutionalised and state-sanctioned policies of discrimination – the requirement that employees were required to retire at 65 unless their employer was prepared to retain them. As well as being obviously discriminatory against older employees, the abolition made economic sense for older employees in an era of increasing lifespans and decreasing retirement incomes.
But with abolition came obvious difficulties for employers: how to manage expectations of younger employees awaiting promotion, how to ensure an age-diverse workforce and how to manage employees whose productivity, engagement and skills may decline with age. And if an employer considers that a mandatory retirement age is justified, how can this be fairly implemented?
A mandatory retirement age may be justified as long as the policy adopted is for ‘legitimate aims’, and both the policy and the means taken to adopt it are ‘proportionate means’ of achieving these legitimate aims.
The University of Oxford’s Employer Justified Retirement Age (EJRA) Policy aims to address these very real difficulties. In doing so the University’s Council has agreed to maintain a retirement age of 67 for the University’s academic and academic-related staff, and have specified that the aim of the EJRA Policy is (to summarise) to safeguard and sustain excellence in teaching, research and professional services; to promote inter-generational fairness and maintain career progression opportunities; to refresh the workforce; to facilitate flexibility through turnover; to maintain and develop its historical position as a world-class university; to facilitate succession planning; to minimise impact on morale and avoid performance management; and to promote diversity and equality.
Can the EJRA Policy aims be justified as legitimate? Are all of these aims appropriate social policy objectives, the test derived from European case law? If tested in an employment tribunal, the answer is likely to be ‘yes’ as these are all aims which have been set out as potentially legitimate by the Supreme Court in the leading case of Seldon v Clarkson Wright and Jakes (a partnership).
But the EJRA Policy has caused conflict within the University – with concerns raised about why such a Policy is required, whether it can be justified in principle for academics, and complaints about how it is being implemented. There is clearly risk of a legal challenge.
The following questions may well arise if there is a sustained challenge to the EJRA Policy:
1. Are the means adopted to achieve the aims of the Policy proportionate means? One issue which may arise is how the University’s exceptional process to offer extended employment beyond age 67 operates in practice: does the ‘informal discussions’ process create different processes and outcomes in different Colleges or Departments, if so how does this equate to a proportionate means?
2. Does the exceptional process aim to create “a sufficient clear advantage to the University” conflict with the legitimate aim of the EJRA Policy as it is looking at ‘employer advantage’?
3. Can the mandatory retirement age of 67 be justified? Why is it not, for example, 70?
4. Can other less discriminatory measures achieve the same legitimate aim?
5. How will utilisation of this exceptional process affect succession planning and the other aims of the EJRA Policy?
6. Are older academics required to over-perform against their younger peers in order to meet the criteria for this exception, for example in the requirement for specific value research grants? Does this over-performance requirement equate to direct age discrimination in itself? If so, can this be justified?
These are just some of the issues we have looked at which arise from the University’s EJRA Policy. We have written a more detailed paper on this issue outlining the law in more detail, the potential pitfalls of operating an EJRA policy and possible ways to minimise risk. I would be happy to forward this and to discuss it with you.
Royds Withy King’s Employment team has expertise in acting for University Colleges in Oxford and London and has been involved in resolving complex academic-related employment disputes. If you would like advice on any University-related employment law issues, please do not hesitate to contact me for a free informal discussion
We will shortly be holding a College Bursars’ Forum in conjunction with HSBC and Grant Thornton and a University & College HR Forum, dates to be announced in the near future.
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