Retiring the mandatory retirement age – not the Professors!

Employment Tribunal finds Oxford's mandatory retirement age is not justified

In September 2022, we asked the question, Is it time to retire the University of Oxford’s enforced retirement policy? It now appears we are one step closer to finding out the answer, as an Employment Tribunal has found that the University’s Employer Justified Retirement Age (“EJRA”) policy cannot be objectively justified under the Equality Act.

Has the EJRA previously been challenged?

Several employees of the University have challenged the lawfulness of the EJRA in recent years, with mixed results, but in this most recent case, the Tribunal has ruled in favour of the four Claimants, who all lost their jobs after they were retired by the University under the EJRA in 2020 and 2021.

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). In this case, the Tribunal had to decide, as a preliminary issue, whether the EJRA was objectively justified. It concluded it was not.

Why was the EJRA deemed discriminatory?

A key part of the University’s case on justification was that, for academic staff, the EJRA created vacancies which were necessary to achieve the EJRA’s aims. As part of its 10-year review of the EJRA policy, the University had tried to analyse the statistical impact of the EJRA on vacancy creation and also model the impact if the EJRA were to be removed. At a Preliminary Hearing, the Tribunal looked at this and found that the EJRA created (at best) 8% of vacancies for Statutory Professors and 5% for Associate Professors, meaning that at least 9 in 10 of the vacancies for Statutory and Associate Professors would arise irrespective of the EJRA.

Furthermore, the Tribunal found that there was nothing in the evidence which suggested that the additional vacancies created by the EJRA policy were necessary to establish intergenerational fairness or to ensure refreshment, and it was critical of the University’s limited efforts to consider less discriminatory alternatives. The Tribunal also went on to find that the trivial way in which the EJRA contributes to promoting equality and diversity does not justify the highly discriminatory effect of the policy. As such, it found that the University had not shown the EJRA to be a proportionate means of achieving a legitimate aim and so it was unlawful.

Will the EJRA now be retired?

Given the recent challenges to the EJRA many people will be keeping a close eye on the University’s next move in relation to its policy. Time of course will tell but one realistic potential outcome is that this could spell the end of the EJRA.

Three of the four claimants (all of the professors in this case) were represented by Doyle Clayton. Read our press release here.

You may also be interested in our recent article: Is it time to retire the University of Oxford’s enforced retirement policy?