Oxford tribunal rules against compulsory retirement rule

Reinstatement of professor over age discrimination must force rethink over ‘unfair’ retirement rules, say campaigners

July 6, 2017
University of Oxford
Source: Alamy

Academics at the University of Oxford look set to challenge once again rules that force them to quit work at the age of 68 after a professor became the latest scholar to overturn enforced retirement.

In the latest clash over a policy introduced to help “intergenerational fairness”, a leading former judge ruled in an internal appeal that Oxford should reinstate Peter Edwards, professor of inorganic chemistry, after it “discriminated [against him] on the grounds of age” by seeking his retirement.

In an unusual move, Sir Mark Waller asked for his normally confidential judgment to be made public – with the university also releasing a second judgment from September 2014, in which retired High Court judge Dame Janet Smith criticised the treatment of another professor under the compulsory retirement policy as “fundamentally unacceptable” and amounting to “unfair dismissal”.

Under the rules, academics are currently required to retire at the age of 67, although they can apply for a two-year extension. The age limit is set to rise shortly to 68 after a university review.

Efforts to overturn Oxford’s Employer-Justified Retirement Age (EJRA), introduced in 2011 after the national abolition of the default retirement age, have so far failed. The university congregation backed the policy for the sixth time last month in a postal vote triggered by campaigners, with about two-thirds of voters (1,142) supporting the rule and nearly one-third (538) opposing it.

However, campaigners believe that the release of the two appeal judgments could be a turning point.

David Palfreyman, director of the Oxford Centre for Higher Education Policy Studies, who is opposed to the EJRA, said that the university’s “congregation has never yet been fully informed on all this when trying to make a proper decision”.

“The university’s pathetic hiding of the Smith judgment for so long hardly demonstrates that congregation has, so far, been properly informed,” said Mr Palfreyman, bursar of New College, Oxford.

In his judgment, Sir Mark – who served as the Intelligence Services Commissioner between 2011 and 2017 – criticises the failure to show Dame Janet’s findings to the congregation before it voted on the issue, stressing the need for a “balanced debate” based on the facts. He also says, however, that a vote did not necessarily make the EJRA process lawful, although it could be an “important material factor” if it were challenged.

Paul Ewart, professor of physics at Oxford’s Clarendon Laboratory, said that Sir Mark’s judgment was an important victory for the campaign.

“Another eminent judge has confirmed Dame Janet’s judgment that the university’s EJRA was not objectively justified and therefore unfair, and rebuked council for withholding the original judgment from congregation before it voted to retain it,” he said.

In public debates at the university over the past few months, the issue of compulsory retirement has been described as a battle between “old, white men…hanging limpet-like to space and resource” and “talented young scholars…trying to get their first stable job”.

Defenders of the EJRA, which is also in effect at the universities of Cambridge and St Andrews, claim that low turnover of staff at these institutions means fewer opportunities for younger scholars – particularly female and ethnic minority staff – as academics are happy to stay put well into their seventies.

A University of Oxford spokesman played down the significance of the two internal appeal decisions, saying that they both relate to the EJRA system in place before September 2015 when major revisions were made to procedures in light of Dame Janet’s recommendations, including a one-year increase in the retirement age.

“Neither decision challenges the validity of a university EJRA as a means of promoting intergenerational fairness and maintaining opportunities for career progression,” he said. “This fundamental principle has been overwhelmingly endorsed by congregation, which has now voted six times in the last three months to support the revised EJRA.”

jack.grove@timeshighereducation.com

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Reader's comments (4)

Oxford University the law is simple no age discrimination so you cannot ignore the law - end of. Oxford University often thinks it is a law unto itself but it is not there are laws of the UK and they need to be respected whether you like it or not.
Maverick2. I can see where there might be exceptions to the rule, enabling a professor to keep on working, but having the age limit in effect can be beneficial to older professors in some ways. If there were no limit, some might think they ought to keep working, to prove they can do it, and others might be encouraged to do so even if they felt like retiring. And besides, the main point is that at some point the profs should think about passing the responsibility on to the generations coming up. For the most part, they were never really meant to work as long as they do. If it weren't for increasing longevity in the west, and profs having the money to pay for that healthcare, most of them probably wouldn't have the energy and good health to be able to continue working anyway. And there's the new grads on their way up, and do they have the money for a good medical plan, working as lecturers and assistants? Or are they going to be struggling to survive, while trying to maintain good health under the NHS and raise a family, while the wealthier, established professors hang on to their coveted positions, some of them just a facade of academic accomplishment, their best days behind them?
A mandatory retirement age is discrimination, regardless of the good intentions that might lie behind it in terms of staff turnover. The difficult question will be how to facilitate turnover when mandatory retirement ends, as it surely will before long. It is wrong to determine that academic performance suddenly reduces at some arbitrary age, but do we really want to start down the alternative path of evaluating all academics, whatever their age, and enforcing "retirement" on those whose performance is not deemed up to some standard?
If we look at this from a different perspective, say, from the point of view of opportunities, we can probably say that practically all those in the higher echelons of academia have had plenty. Regardless of whether they are still productive in a way that younger academics are not yet capable, or new but older academics who got a late start, we could actually say that it is probably about time they left. Unless academia is in the situation of not having enough younger and middle age academics ready to step into these positions, then all it takes is a law to make it not an act of discrimination to let them go at a certain age. Call it something else than mandatory retirement, to appeal to their sense of contributing further to the world of academic research and knowledge on the whole, by allowing others to take their place and have their opportunity, too, to contribute and achieve fulfillment. It is not as though anything any academic does is absolutely necessary or our world will not continue. If there had not been an Einstein or a Shakespeare, there would have been someone else, taking our world into a somewhat different direction perhaps. In the larger scheme of things, it doesn't matter. What matters is that people have the chance to do what matters to them, to find fulfillment and to contribute to society. And there are many academics waiting to fill the shoes of the ones whose lives have always been within this narrow field of life experience. Time to move on!

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