Posted by Lucy Nash, Solicitor
“Bankrupt moral leadership” or a necessity for equality and diversity?
Oxford and Cambridge are accused of “bankrupt moral leadership” by senior academics for choosing to keep the Default Retirement Age (DRA) despite its abolition in 2011.
What does the law say?
Pre-2011, the law enabled employers to force staff to retire at 65, regardless of their circumstances. However, the Government felt that the law needed to adapt to the fact that people are living longer and due to better health, able to work for longer.
As such, the Government confirmed on 13 January 2011 that it would remove the DRA, meaning people would have the flexibility to choose when they stop working and employers would not be able to compulsorily retire employees.
However, despite those changes, the law still makes it possible to allow individual employers to operate a compulsory retirement age in circumstances where they can objectively justify it; for example, if the job requires a certain level of mental or physical ability, or has an age limit set by another law (such as the fire service).
Universities in England
Most leading universities in England scrapped the DRA when the law changed. However, both Oxford and Cambridge chose to maintain it for reasons including “promoting equality and diversity”, ensuring “intergenerational fairness” and to help younger academics refresh the workforce.
This decision does not appear to have been taken well by some senior academics who have commented that the policy is “unambiguously ageist and impossible to justify” and amounts to age discrimination.
What’s the alternative?
There are clear arguments both for and against an education institution maintaining the DRA.
It is of course important to bring in new talent in order to keep the workforce energised and the students engaged, but does younger necessarily mean better?
More importantly, institutions need to carefully consider how they might be perceived by existing, ageing, staff members and new applicants alike. If someone in their late fifties or sixties could work somewhere else for longer, why would they choose to join, or stay at an institution that will remove them when they reach 65, and what impact will that have on the quality of teaching at these institutions?
Institutions maintain that they are keeping the DRA in order to enable them to employ from a fresh pool of talent. However, it may be that by relying on outdated employment legislation they are offering a less favourable work environment than their competitors and in turn, reducing the pool that is already being affected by the uncertainty of Brexit.
The alternative is to follow the route taken by most other institutions and to instigate a fair performance review process based on standard criteria and not age. This still allows employers to make redundancies and dismissals if an employee is underperforming at any age.
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