An expensive lesson on age discrimination
The wait is over for those of you who have been expecting the outcome of the case by Professor Paul Ewart against Oxford University (see my previous article).
Sometimes it is easy to forget that amongst Covid related matters, Tribunals are trying to deal with other employment related issues and the Reading Tribunal has recently issued the remedy judgement in this case. You may remember that Professor Ewart (born in Belfast) head of atomic and laser physics at Oxford, was forced to retire in September 2017 at age 69, the University’s own fixed retirement age. At the substantive hearing, the Employment Tribunal held that Oxford University had discriminated against Professor Ewart on the grounds of his age, and their attempt to suggest that their retirement age was justified to foster diversity and inter-generational fairness within the University, failed.
This case was sent back to the Tribunal to consider the question of appropriate remedies. On this occasion, the Tribunal has ordered the re-instatement of Professor Ewart until at least 30 September 2021, the date on which Professor Ewart indicated he would retire. They also ordered the University to pay to Professor Ewart the salary he would have received from 1 October 2017 until the date before his re-instatement 30 September 2020. In addition to these earnings, the Tribunal awarded Professor Ewart £22,500 compensation for injury to feelings, together with interest of approximately £7,000.
This is undoubtedly an expensive lesson for the University who had applied to postpone this remedy hearing, whilst it appealed against the original finding of discrimination. Nevertheless, as matters stand, the University’s forced retirement policy has been held to be discriminatory in practice against Professor Ewart, although a University spokesman confirms that its policy remains in place and will continue to be applied as normal.
This is a reminder for all employers of the potential difficulties, and financial implications, in setting a fixed retirement age. Whilst it may be possible to choose an employer default retirement age, employers must be able to objectively justify compulsory retirement at their set age to avoid a finding of discrimination on the grounds of age. The decision will also serve as a prompt for employers who unfortunately may be currently involved in a redundancy process, where selection criteria must be as subjective as possible. Any discriminatory criterion, including age, should be excluded, including assuming that an older employee is willing to retire. Financial implications are huge for a wrong decision, including the possibility of welcoming back your ex-employee.
Please contact Patricia firstname.lastname@example.org or your usual Tughans contact, who can refer you to the employment team.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.