Professors successful in age discriminations claim against Oxford University's mandatory retirement age

An Employment Tribunal has found that the University of Oxford’s enforced retirement age cannot be objectively justified under the Equality Act. Doyle Clayton has successfully advised three Professors who brought claims against Oxford University, for direct age discrimination, challenging their enforced retirement under its so-called Employer Justified Retirement Age (“EJRA”) policy. The remaining Claimant was a senior administrator and was unrepresented.

The University’s EJRA and how it was challenged

The EJRA was first introduced in 2011 after the default retirement age was abolished in the UK. In this case, the EJRA required all employees in grade 8 and above to retire at age 68. All of the Claimants lost their jobs after they were retired by the University under the EJRA.

Several employees of the University have challenged the lawfulness of the EJRA in recent years. In two separate Employment Tribunal claims, Professor Paul Ewart successfully claimed age discrimination and unfair dismissal, whereas the same claims brought by Professor John Pitcher were unsuccessful. Both judgments were appealed to the Employment Appeal Tribunal (“EAT”) and heard together, with the EAT upholding both (conflicting) judgments, finding that each Tribunal had not erred in reaching its decision. This most recent case is the first Employment Tribunal case since that unusual EAT decision.

The preliminary issue - was the EJRA objectively justified?

An employer can lawfully ask employees to retire at a certain age if doing so is a proportionate way of achieving a legitimate aim or aims (i.e. if it is objectively justified). As a preliminary issue, the Tribunal in this case had to decide whether the EJRA was objectively justified. It concluded it was not.

As part of its defence, the University argued that the effect of the EJRA was to create vacancies. In its judgment, the Tribunal stated that the University had not made any attempt to measure the effect of the EJRA on actual vacancy creation across the initial ten-year period of the EJRA. It stated:

“…We remain at a loss as to why the respondent has not made any attempt to measure this, even after the challenges to the EJRA in Pitcher, Ewart and other cases.”

The Tribunal stated the true effect of the EJRA on vacancy creation [based on a statistical model] will be less than 8% [for Statutory Chairs] and 5% [for Associate Professors]. Two of the Claimants were Statutory Chairs.

In its conclusions on proportionality, the Tribunal stated it would assume that the figures for vacancy creation amounted to 8% and 5%. It went on to say:

“This means that at least 9 in 10 of the vacancies across the statutory and associate professor roles will arise irrespective of the EJRA.”

And:

“…the point remains that the overall contribution of the EJRA to promoting equality and diversity is very limited.”

In relation to the discriminatory impact of the EJRA, the Tribunal stated:

“The EJRA means that an individual is dismissed on attainment of a particular age. That is, on the face of it, about the most extreme discriminatory impact possible in the realms of employment…”

Upon hearing the Tribunal outcome, Simon Henthorn, Partner and Head of Education at Doyle Clayton, commented:

“In our experience it is difficult for employers to lawfully retire employees. This was certainly the case in this matter, and we are delighted that the Employment Tribunal has ruled in the Professors’ favour.”

About Doyle Clayton

Doyle Clayton offers legal and advisory support to clients on issues arising in the workplace, and provides realistic and effective solutions on employment, business immigration, and commercial law issues.

Our education team advises a range of clients, from small prep schools to large multi-academy trusts, as well as private individuals. We have worked in collaboration with professional associations, trade unions and examination boards, and our experienced team of education law solicitors and advisers have decades of experience dealing with all education issues.

We advise on a full range of matters education providers may face, from misconduct and grievances to unfair dismissals and contract terminations. In addition to employment law, we also advise on school mergers or restructures, health and safety legislation, safeguarding issues, data protection issues and the application and maintenance of a Student Sponsor License.

Our team consists of sector specialists who focus purely on the sector, of which they have a strong understanding, regularly delivering training and presenting at industry conferences. The team is ranked by both The Legal 500 and Chambers UK.

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