Is it time to retire the University of Oxford’s enforced retirement policy?

Review of compulsory retirement at Oxford University

Since the default retirement age was abolished in the UK in 2011, the University of Oxford has maintained a fixed retirement age, called the Employer Justified Retirement Age or “EJRA”. Cambridge University and St Andrews have a similar enforced retirement policy, but no other Russell Group universities have a policy of forced retirement. Staff at these universities can retire whenever they wish.

Currently, Oxford’s EJRA applies to all staff at grade 8 or above and these employees are forced to retire on the 30 September preceding their 69th birthday (so at the age of 68). Employees may be able to apply to extend their employment for a fixed term but only if they meet stringent criteria, including stepping out of their role and being able to fully fund their continuing employment.

A number of academic staff have challenged the EJRA in the past, arguing that having an enforced retirement age is unlawful age discrimination. To defend such claims, Oxford need to show that the EJRA is a proportionate means of achieving a legitimate aim or aims. Professor Paul Ewart successfully claimed at the Employment Tribunal and the Employment Appeal Tribunal that Oxford’s EJRA could not be objectively justified and so was discriminatory. However, another professor, Professor John Pitcher, was unsuccessful on the facts of his case. 

A group of professors who have been dismissed under the EJRA will be challenging Oxford’s retirement policy at an Employment Tribunal hearing in November 2022.

Recommendations of Oxford’s 10-year review of the EJRA

Oxford University has recently published its 10-year review of the EJRA. Amongst other things, it concluded that there was no compelling evidence that the EJRA was achieving the aims of its policy in relation to academic-related staff and most research staff. The review therefore recommended that Oxford remove its policy of forced retirement for staff who are not professors or RSIV researchers.

Council has approved the proposal to remove from the coverage of the Oxford EJRA all holders of posts in grades 8–10 and clinical equivalents and posts in grade AlC6, so that coverage is restricted to holders of the posts of Statutory Professor, Associate Professor and grade RSIV researcher (and equivalents). Oxford’s Congregation will vote in October 2022 on whether to amend the University’s statutes accordingly.

If Congregation pushes this change through, then with immediate effect staff in grades 8–10 and clinical equivalents and posts in grade AlC6 will no longer be subject to the EJRA and can work beyond the age of 68 if they wish.

Oxford has said that it is developing a transition plan to provide clarity for those who have already applied for extension under the EJRA procedure and those who are considering applying. This is expected in Michaelmas term 2022. 

However, despite the review’s recommendation, on 30 September 2022 staff in grades 8-10 who are aged 68 will still lose their jobs simply because of their age, as the EJRA will not be changed in time. Given that the review found no compelling evidence that the EJRA is justifiable for these employees, anyone who is being forcibly retired on 30 September 2022 will have a strong claim for age discrimination under the Equality Act 2010.

Following the 10-year review, Council has also agreed to raise the age of the EJRA for Statutory Professors, Associate Professors and RSIVs by one year to 30 September preceding their 70th birthday (at the age of 69). If Congregation pushes this through, then this will have effect from 1 October 2023. This means that any professors who are 68 on either 30 September 2022 or 30 September 2023 will be forced to retire on that date. Whereas, only those who are 69 on 30 September 2024  will be forced to retire.

Those professors who will miss out on an extra year of employment because of this policy change may also wish to challenge their dismissal.  

Challenging a forced retirement age

An employee who is forcibly retired can challenge this by bringing a claim for direct age discrimination in the Employment Tribunal. There are strict time limits for bringing a claim. For anyone who has a possible age discrimination claim, they need to contact ACAS within three months of the discrimination, so by 29 December 2022 if the act of discrimination is dismissal on 30 September 2022. If the claim is not settled via ACAS, then they usually need to lodge their claim in the Employment Tribunal within one month of the end of the ACAS early conciliation period. There is no fee for contacting ACAS or for lodging an Employment Tribunal claim.

If employees don’t contact ACAS within this timeframe, then they may lose the right to bring a claim for age discrimination which will impact their ability to negotiate compensation for loss of employment.

If you have been affected by the EJRA or a fixed retirement age and would like advice on this, feel free to contact Simon Henthorn or Liz Timmins in the Doyle Clayton education team.

To see Simon’s letter published in The Times about Oxford and Cambridge University’s discriminatory retirement policies, click here (registration required).

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