Compulsory Retirement Age - Is It Justified?

In Ewart v University of Oxford, an Employment Tribunal (ET) has held that Oxford University's compulsory retirement age policy could not be objectively justified as it was not a proportionate means of achieving a legitimate aim. The University had therefore unfairly dismissed Professor Ewart and directly discriminated against him on the grounds of his age.

Employer-Justified Retirement Age Policy (EJRA)

Since 2011 the Oxford University had in place an EJRA policy that required academics to retire before their 69th birthday. A professor who was being forced into retirement brought a successful claim against the University for age discrimination and unfair dismissal in a case that has highlighted the risks for employers who set a retirement age for employees.

Legitimate Aims and Proportionality

Unlike other forms of direct discrimination, direct age discrimination can be justified on the basis that it is a proportionate means of achieving a legitimate aim (and goes no further than necessary to achieve that legitimate aim).

In this case the University was successful in showing it had legitimate aims for the EJRA policy, for example that it allows for younger and more diverse academics to progress in their careers by creating new job vacancies. In fact the University had successfully justified the policy in a different age discrimination case earlier this year.

However, in this case, the ET held that the University had not shown sufficient justification for the policy's discriminatory effect with regards to its aims. For instance, Ewart provided statistical evidence that suggested that the EJRA only created 2-4% more vacancies than would have otherwise arisen had the policy not been in place. This was found to be trivial in comparison with the discriminatory effect of terminating someone's employment solely due to their age.

Considerations for Employers

This case highlights the difficulties in justifying a contractual retirement age, which may also be reflected in the fact that Oxford is now one of only two Universities in the UK to maintain one.

When implementing any retirement age policies, employers should carefully consider:

• what aims the policy is seeking to achieve
• whether a compulsory retirement age actually achieves the legitimate aim identified, with clear supporting evidence (in this case, the University wasn't able to show that it was making appropriate efforts to monitor the EJRA to see what contribution it was making to the creation of new vacancies)
• whether there is an alternative to a compulsory retirement age
• why the particular retirement age chosen is appropriate and necessary
• whether the employer applies the retirement age consistently
• taking into account individual circumstances, as blanket rules which do not take into account individuals may be harder to justify

If you would like further advice on compulsory retirement age policies, please contact Bob Fahy in our Employment Law team on 020 7665 0818 or complete the form below.