Four former members of staff at the University of Oxford have won their employment tribunal case against the institution after being “forced” to retire at the age of 68.
Judges ruled that Oxford’s “Employer Justified Retirement Age” (EJRA) policy had a “highly discriminatory effect” because it removed “people from their jobs simply because they have attained a particular age”.
One of the aims of the policy – to promote equality and diversity by opening up new opportunities – was “legitimate”, the judgment said, but the EJRA had only contributed to this in a “very small” way, and therefore such discrimination was not justified.
Oxford said it was reviewing the tribunal’s ruling and left open the possibility of an appeal.
But it represents the latest legal setback for the controversial policy and has potential repercussions for similar rules in place at the universities of Cambridge and St Andrews.
The claimants – Nicholas Field-Johnson, formerly the head of development for the department of continuing education; Bent Flyvbjerg, a former professor in the Said Business School; Philip Candelas, formerly the Rouse Ball Chair of mathematical physics; and Duncan Snidal, a former professor in international relations – all left the university between 2019 and 2021 because of the EJRA, although some went on to new roles rather than retiring.
They claimed age discrimination, saying they were dismissed at the peaks of their careers, when they still had much to offer the university and the option of becoming an emeritus professor or similar was “not comparable to their previous employment”.
Oxford has operated the EJRA since 2011, when the introduction of the Equality Act prevented it from enforcing compulsory retirement on staff aged 65. It has been modified on several occasions, with the retirement age increased from 65 to 68 and staff at lower grades removed.
Judges were asked to rule whether the policy was proportionate because of its aims of ensuring inter-generational fairness, refreshing the workforce, facilitating succession planning, and promoting equality and diversity.
On whether the EJRA had created new opportunities, judges said Oxford had “not made any attempt to measure the effect of the EJRA on actual vacancy creation across the initial 10-year period”. This was described as “unfortunate”.
Various mathematical models had been presented to show the impact of the policy. One claimed to show that the EJRA accounted for 8 per cent of the available vacancies for professors and 5 per cent of those for associate professors, meaning it had no impact on nine in 10 vacancies that arose.
On diversity, judges again said Oxford’s case was “significantly weakened by any lack of reliable statistics outside diversity of sex”.
Modelling showed that the EJRA was thought to account for “a net increase of 0.5 women a year in the position of associate professor”. For full professors, an “additional woman is appointed every other year” because of the EJRA.
“The EJRA does contribute to the fulfilment of this aim, but to a very small degree, both in absolute and proportionate terms,” the judgment concluded.
Overall, it found that “the respondent has not shown that the EJRA is a proportionate means of achieving a legitimate aim”.
The ruling comes after Oxford lost a previous case to physicist Paul Ewart, who received £30,000 in damages and was reinstated to his former position. However, Shakespearean scholar John Pitcher, who also claimed age discrimination and unfair dismissal because of the EJRA rule, was unsuccessful in his claim just a few months before that.
An Oxford spokesman said: “The university has been notified of the tribunal’s ruling. We are currently reviewing the detail and considering our next steps, including the option of appeal.”
Simon Henthorn, partner and head of education at Doyle Clayton, who represented the three professors, added: “In our experience it is difficult for employers to lawfully retire employees. This was certainly the case in this matter, and we are delighted that the Employment Tribunal has ruled in the professors’ favour.”
