Physicist wins employment tribunal over Oxford retirement rule

Judgment likely to reignite the battle over the fixed departure ages at the university and elsewhere

December 30, 2019

A physicist who challenged the University of Oxford over its compulsory retirement policy has won an employment tribunal for age discrimination and unfair dismissal.

Paul Ewart, a former head of atomic and laser physics at Oxford, was the latest academic to bring legal action over rules introduced in 2011 to stop staff working beyond their 67th birthday.

The university has insisted that the Employment-Justified Retirement Age policy, which after a review now requires dons to retire at 68, exists to improve diversity and career progression for younger academics.

But the employment tribunal judge presiding over Professor Ewart’s case found that forcing academics to retire was not a “proportionate” method for achieving EJRA’s stated aims.

The ruling is likely to reignite the battle over Oxford’s rule and whether it is a legitimate policy in UK higher education more generally. The university says it may appeal the ruling.

Professor Ewart, who worked at Oxford for 38 years until September 2017, was in 2014 granted an extra two years to work until he was 69 and presumed that he would be given a second extension until 2020 to allow him to complete several research projects.

But despite the support of his then head of department and other scientists, he was told in February 2017 that his application for a three-year extension to work part-time had been rejected.

For the employment tribunal, Professor Ewart gathered statistical evidence that, he claimed, showed that the EJRA could help to create only a small number of vacancies to improve diversity and opportunities for young academics.

In its judgment, the tribunal said “if a heavily discriminatory measure results in the creation of only 2-4 per cent more vacancies than would otherwise arise, we do not see how that can be proportionate. The increase in the number of vacancies in support of the legitimate aim is trivial in comparison with the discriminatory effect.”

The judgment concludes that Oxford “has not justified what would otherwise be discrimination, and accordingly on each of the points of age discrimination alleged we find that the claimant has been discriminated against unlawfully on grounds of his age”.

Professor Ewart, who is now 71, said he was “delighted” with the judgment and would continue to seek reinstatement to his post to carry on projects including research into ultra-efficient engines that he believes will make a vital contribution to society.

“It has never been about…money, it has been about establishing the right to work. Some of my colleagues, who are doing very important work, are faced with the same position of being forced into retirement at a time when they feel they have more important research to do,” he told Times Higher Education.

Professor Ewart added that he was especially pleased that the judgment focused on the EJRA rule more generally and not just the details of his case. “I would think that because the policy has not been justified, then [the judgment] applies to everybody in my position,” he said.

The ruling will certainly cast fresh doubt over the policy just months after a different employment tribunal case in which a Shakespearean scholar at Oxford, John Pitcher, lost his claim for age discrimination and unfair dismissal over the EJRA rule.

That judgment had seemed to justify the use of an EJRA policy in higher education. Similar rules are in place at the universities of Cambridge and St Andrews.

An Oxford spokeswoman said: “In light of this ruling, the university will be considering its options, including the possibility of an appeal.”

simon.baker@timeshighereducation.com

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