Compulsory Retirement: how old is too old?
The recent successful Employment Tribunal claim by Professor Paul Ewart (originally from Northern Ireland) against The University of Oxford has highlighted the risks for employers who set a retirement age for employees. Professor Ewart, the former head of atomic and laser physics at Oxford Clarendon Laboratory had worked at the University for 30 years until September 2017 when he was forced to retire before his 70th birthday.
Professor Ewart successfully alleged that he had been unfairly dismissed and treated less favourably on the grounds of his age by the University of Oxford in their implementation of their employer justified retirement age (EJRA).
Professor Ewart brought his case under the provisions of the Equality Act 2010 (the Act) which makes it unlawful for employers to discriminate against employees on the grounds of age. Whilst the Act does not apply in Northern Ireland, we have our own Employment Equality (Age) Regulations (Northern Ireland) 2006 (the Regulations) which came into force on 1 October 2006. At that time, the Regulations introduced a national default retirement age and special procedures regarding the retirement of employees. However, those aspects of the Regulations were repealed in 2011 and now, there is no national default retirement age at which an employer can legally retire an employee.
It is however open to employers to introduce their own default retirement age. This is what Oxford University did by the introduction of a policy with its EJRA requiring academics to retire in the September before their 69th birthday. In exceptional cases, an academic is allowed to continue working after age 69.
As indicated above, whilst the Regulations make it unlawful for an employer to discriminate against an employee on the grounds of age, it is possible for an employer to introduce an EJRA and justify that on objective grounds. To avoid a finding of age discrimination, the objective justification for the introduction of a practice or requirement, in this case a set retirement age, must be a proportionate means of achieving a legitimate aim. Often, in the cases of an implementation of compulsory retirement age, legitimate aims include workforce planning, to allow career progression and staff retention, for health and safety issues or on the grounds of dignity. In this case, the University of Oxford suggested their EJRA was to foster diversity and inter-generational fairness. The Employment Tribunal in Reading held however, that the implementation of the policy had created only a “trivial” number of new opportunities for younger academics. It held that the University’s forced retirement age was not a proportionate means of achieving that aim.
Whilst there are only two other Universities (Cambridge and St. Andrews) which have such a retirement policy, the Tribunal decision is important for all employers who operate a default retirement age, regardless of the sector in which they operate. In attempting to enforce a retirement age, and objectively justify the use of such a retirement policy, an employer must consider what legitimate aims it is attempting to achieve. Tribunals have already decided that costs on their own cannot amount to objective justification but factors such as career progression, concerns of health and safety, dignity for older employees should also be considered. Employers however must always consider whether there are alternative means of achieving such aims that are less discriminatory on the grounds of age. They must demonstrate not only can they objectively justify a set retirement age at all, but further justify the particular age they have chosen.
The success of Professor Ewart’s claim is to be measured at a remedy hearing in September. Whilst there is still time for the University of Oxford to appeal against the Tribunal’s decision, as there is no cap on damages for a finding of discrimination, the EJRA could be an expensive lesson for the University.
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.