UK age discrimination laws prohibit age-based policies, including mandatory retirement ages, unless the treatment supports a ‘legitimate aim’ and is a ‘proportionate means’ of achieving that aim. Rather than risk facing legal action, most employers have abandoned mandatory retirement ages and sought other ways of planning the departure of staff. However, Oxford University continue to operate a mandatory retirement age for its academics. The has led to two Employment Tribunal (‘ET’) judgments: Pitcher v University of Oxford, which held that the policy was proportionate and therefore lawful age-based treatment; and Ewart v University of Oxford, which held that the policy was unjustified and therefore unlawful age discrimination. At the time the applicants in these cases were forced to retire, the mandatory retirement age was 67 but since 2017 the mandatory retirement age has increased to 68. Oxford University have indicated they will appeal the Ewart decision, and, in the meantime, will continue to impose the mandatory retirement age on their academics.
In this entry, I examine the reasoning in Pitcher and Ewart further to offering a critical analysis of the justifiability and legality of the mandatory retirement age policy. Both judgments held that the mandatory retirement age policy had legitimate aims, including increasing the number of employment opportunities for younger academics that may lead to more women and ethnic minorities being employed at the University. However, the judgments differed on their assessment of the proportionality of the policy. Pitcher held that the policy was proportionate because the policy was devised as a result of consultation with staff and the union, and the applicant would be able to continue academic work because he could continue to use university facilities for research and obtain research funding. Ewart held that the policy was a disproportionate means of achieving its aims because the policy had a serious discriminatory impact while only making a marginal difference to generating job vacancies for younger workers.
I defend the Ewart judgment, and, further to this, I outline two concepts of equality that are crucial to examining the proportionality and therefore the legality of age-based policies, namely, distributive equality, which concerns the fairness of accessing resources, welfare or opportunities, and relational equality, which concerns the capacity of different groups to participate in society as equals. I argue that Oxford University’s mandatory retirement age aims to promote distributive equality by increasing the number of employment opportunities for younger academics, women and ethnic minorities, but the policy undermines relational equality by stigmatising older academics. The apparent limited gain in distributive equality of the policy to date, however, cannot justify the detrimental impact of the policy on older academics, and therefore the policy ought to be considered unjustified and unlawful.
The Legal Context
The Employment Equality (Age) Regulations 2006 made it lawful for employers to force employees to retire at the age of 65. Parliament abolished this in 2011 with the government at the time explaining the need to promote working beyond 65 years of age to ensure the sustainability of pensions and the benefits to the economy from older people continuing to work. The Equality Act 2010 now provides that age-based policies, including mandatory retirements ages, are only lawful if the treatment can be ‘objectively justified’ as proportionate to achieving a legitimate aim or if the treatment is covered by a specifically prescribed exception.
In this context, Oxford University, after extensive consultation between staff and the union, decided to operate a mandatory retirement age. Prior to 2017, and at the time the applicants in Pitcher and Ewart were forced to retire, the policy set the mandatory retirement age at 67. Since 2017, the policy operates to force academics to retire on 30th September prior to their 68th birthday. Academics can make representations to a panel to explain that they should continue to be employed after they reach the retirement age. However, the range of circumstances where academics can continue to work beyond the retirement age has been restricted to only exceptional circumstances, such as when an academic requires more time to complete important research.
There is a lack of guidance in the Equality Act 2010 on when mandatory retirements ages are ‘objectively justified’ as a proportionate means of achieving a legitimate aim. The most significant case is Seldon v Clarkson Wright & Jakes, which held that it is possible to justify a mandatory retirement age on the grounds that the policy can promote ‘inter-generational fairness’ by creating more employment opportunities for younger workers, and on the grounds that the policy can help preserve the dignity of older workers by forcing older workers to retire rather than having to experience employment capability assessments. Seldon confirmed that the policy is only proportionate and therefore lawful when the policy has an appropriate balance between the social-policy objectives and the detrimental impacts on older workers. Further to this, the choice of age subject to mandatory retirement must be justified in balancing these interests. For example, a retirement age of 68 can only be lawful if there is a justification for choosing this age rather than, say, 70 to support the legitimate aims. The more serious the detrimental impact the policy has, the more cogent a justification for the policy is required to demonstrate that the policy is proportionate. However, there is a lack of guidance on when a specific mandatory retirement age achieves a proportionate balance between its aims and its detrimental impact. Cases differ on how much leeway should be given to employers to decide how to achieve a balance and this is illustrated by the different approaches to the proportionality assessment in Pitcher and Ewart. I outline these different approaches before moving on to defend the Ewart approach.
Pitcher v University of Oxford
Professor John Pitcher argued that he was unjustifiably forced to retire at 67 years of age. He had made a request to continue to work beyond the retirement age, but the University Panel rejected this request. He complained to the ET, which held that the mandatory retirement age supported a legitimate aim of increasing the number of vacancies for younger academics which in turn could have the effect of increasing the opportunities for women and ethnic minority academics. The ET also held that the policy was proportionate to this aim because the policy was arrived at after consultation with staff and the union and that Professor Pitcher could continue to use the library and other facilities to conduct research. He also could apply for research funding. This meant, the ET held, that the policy only had a marginal detrimental impact on Professor Pitcher and therefore it was appropriate to give leeway to the University to use the mandatory retirement age policy to create more vacancies for younger academics.
Ewart v University of Oxford
Professor Ewart was due to retire in 2015 but was granted a two-year contract extension to continue his research on laser technology. He later applied for an extension to continue the research until 2020. The mandatory retirement age policy at that time held that a contract extension past the mandatory retirement age must only be granted in ‘exceptional circumstances’. His application for a contract extension was rejected and he was forced to retire in 2017.
The ET held that the policy supported the following legitimate aims: safeguarding high standards by introducing new academic staff who can contribute new ideas in new areas; promoting inter-generational fairness by generating more vacancies for younger people; and increasing diversity by increasing the number of women and ethnic minorities employed at the University. Oxford University claim that a mandatory retirement age can support the diversity aim because the proportion of women and ethnic minorities applying for job vacancies is greater than the proportion of women and ethnic minorities currently employed at the University. Seldon (discussed above) had confirmed that mandatory retirement ages can also be justified by the need to avoid intrusive and undignified capability assessments for older academics, but Oxford University deny they are using the policy for this reason.
Despite the policy supporting the legitimate aims, the ET held that the policy was disproportionate because it had a serious detrimental impact on older academics while only making a marginal contribution to the legitimate aims. In finding that the mandatory retirement age was unjustified and unlawful, the ET placed much more emphasis than Pitcher on the discriminatory impact of the policy. The ET held that ‘[t]here can hardly be a greater discriminatory effect in the employment field than being dismissed simply because you hold a particular protected characteristic’ [260] and it is ‘hard to think of a more severe discriminatory impact’ [263]. Also, the policy usually ended the careers of prominent academics who had often been performing excellently. Given the significant discriminatory impact, the ET held that the policy must contribute to a significant gain in the legitimate aims of the policy for the policy to be proportionate and lawful. The ET used some statistical data provided by the University and some reasonable and justified approximations to calculate a “reasoned projection” of the impact of the mandatory retirement age on the production of vacancies. From this, the ET concluded the the mandatory retirement age produced only a 2-4% increase in the rate of production of vacancies. This meant, the ET held, that the policy does not make enough of a difference to the creation of vacancies that would support the legitimate aims to justify the discriminatory impacts of the policy. The University did not offer any opposing evidence. Therefore, the policy was unjustified and unlawful.
Age-group Justice and Oxford University’s Mandatory Retirement Age
The ET decisions in Ewart and Pitcher were clear that the policy pursued legitimate aims, but the judgments were obscure about the nature and extent of the detrimental impact of the policy. Further to defending the Ewart judgment, I outline two conceptions of equality that elucidate the nature of the detrimental impact and the potential benefits of the policy, namely, distributive equality and relational equality. These principles assist in evaluating whether the policy is objectively justified as a proportionate means of achieving a legitimate aim.
Distributive equality requires that we consider the impact the policy has on the capacity of groups to access resources, welfare or opportunities fairly. Age-based policies can promote distributive equality when policies achieve roughly equal access to welfare, resources or some other valuable opportunity over their complete lives. The voting age of 18, for example, is unproblematic on this account because everyone will reach the voting age assuming they live long enough. Oxford University argue that the mandatory retirement age policy can promote distributive equality by distributing employment opportunities from older academics who have had extensive academic opportunities over their careers to younger academics, including more opportunities for women and ethnic minorities, who have had much fewer opportunities to date to contribute new ideas in new research areas. The mandatory retirement age, on a distributive equality account, is justified because older academics have had a ‘fair innings’ and should make way for others.
However, it is also crucial to evaluate not just whether an age-based policy promotes more equal access to welfare, resources or opportunities over peoples’ complete lives, but also to consider the impact a policy may have on relational equality. Relational equality requires that people can participate in society as equals. It is not principally concerned with the fairness of distribution but is concerned with evaluating whether policies reinforce unjustifiable hierarchies of rank, status, power and stigma. For example, caste systems, racism and sexism violate relational equality by creating a hierarchy of social status and denying people esteem in society leading to social exclusion.
Age-based policies may promote distributive equality but nonetheless create unjust hierarchies of social status between age groups that undermines relational equality. For example, consider a society where people achieve affluence in middle age living in expensive apartments, but older people are forced to retire and live in poor-quality accommodation. This can ensure people have equal access to resources and welfare by experiencing the good and bad accommodation over their complete lives. However, the policy can have a devastating impact on the capacity for older people to live in society as equals. Living in poor-quality accommodation can lower self-esteem, can reduce social status and may prevent people from having an equal chance to participate meaningfully in society through employment.
Applying relational equality to Oxford University’s mandatory retirement age, we can identify a significant detrimental impact on older academics’ capacity to participate in society (and the University) as equals. By framing the policy as a transfer of opportunities from older academics to younger academics, the University are treating older academics as having had a ‘fair innings’ who must make way for younger workers. While this is a distributive equality aim, it nonetheless stigmatises older academics by implying that older academic block opportunities for younger people and by reinforcing ideas that older academics are ‘past it’, which can give the impression that older academics have less to offer the University and society. The University’s stated aim for using the mandatory retirement age to ‘safeguard high standards’ can create the impression that older academics have lower social worth to the University and society by implying that they need to be replaced by younger people who are more likely to contribute fresh ideas. In addition, our society links work to social status. Work is the means by which we can contribute meaningfully to the common good of society. Retiring older academics with the potential result of ending their careers can have the effect of assigning older academics to a lower status illustrating lower regard for their potential academic contributions.
Nonetheless, while mandatory retirement ages can compromise relational equality from the perspective of older academics, it may be argued that the policy could aim to promote relational equality from the perspective of young academics by granting work opportunities to younger people, including women and ethnic minorities, by raising their status within society. Young academics are often employed by Oxford colleges on insecure fixed-term contracts renewed from year-to-year or term-to-term, often taking on the teaching responsibilities of older academics who have secured research funding. These arrangements undermine relational equality for younger workers by assigning younger workers to an insecure and precarious status within the University. It is an imperative under relational equality to adopt policies that improve the job stability of young academics. It may be argued that a mandatory retirement age could be part of such a strategy by generating job opportunities for young academics by dismissing older academics. This frames the mandatory retirement age as part of a distributive equality strategy to distribute some esteem and standing that older workers have to be transferred to younger workers. However, for the policy to be proportionate to this aim, it must achieve a justifiable balance between the gain for younger workers and the detrimental impact on older workers. In addition, the selection of 67 and, since 2017, 68 as the retirement age must be justified as an appropriate and effective way to achieve this.
Further to making this assessment, we can return to the reasoning in Pitcher and Ewart on the proportionality of the policy. In Pitcher, the ET held that the policy achieved a proportionate balance between the legitimate aim and the detrimental impact on older workers because the policy had only a marginal detrimental impact on the applicant since the applicant could continue to use the University’s facilities to conduct research. However, the fact that the applicant could continue to use the University’s facilities to conduct research does not eliminate the stigmatising impact the policy has on older academics. As explained above, older academics are assigned a different and diminished status within the University as a result of the policy reinforcing stereotypical ideas about older workers. The approach in Pitcher, therefore, failed to acknowledge the extent of the detrimental impact of the policy on older academics.
The ET in Ewart, however, correctly acknowledged that the mandatory retirement age has a significant detrimental impact on older academics. The ET explained that the more significant the detrimental impact a policy has on certain groups, the greater burden on the respondent to demonstrate that the policy supports legitimate objectives. In this context, the ET were right to reject Oxford University’s argument that the University should be given leeway to experiment with the policy in the hope that it can eventually make a substantial contribution to equality objectives over time. TThe body of data in Ewart revealed that the mandatory retirement age has only generated a 2-4% increase in job vacancies, which is a rate that cannot generate sufficient distributive and relational equality gains to justify the significant detrimental impact the policy is having on older academics. The policy therefore does not achieve an appropriate balance between its detrimental impact and its contributions to legitimate aims, and therefore the policy ought to be considered unjustified and unlawful.
About the author: Stuart Goosey is a Lecturer in Law at the University of Leeds. His research interests are anti-discrimination laws with a focus on age as a protected characteristic.
(Suggested citation: S Goosey, ‘Oxford University’s Mandatory Retirement Age: A Justified Experiment to Promote Equality or Unlawful Age Discrimination?’, UK Labour Law Blog, 16 April 2020, available at https://wordpress.com/view/uklabourlawblog.com)
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