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MOVING TO FRONT FROM JANUARY 6–SOME INTERESTING COMMENTS (MORE WELCOME)
…before an employment tribunal. Oxford is still enforcing mandatory retirement at 67 on almost all faculty. Does anyone know what precedential value, if any, this decision has? Will other faculty have to challenge this on an individual basis? (I gather Oxford has lost other such cases recently.) Comments from readers knowledgeable about English law welcome.
It has very little precedential value (tribunals like this are very low down the hierarchy of courts), and yes it is still left up to individual faculty challenges. But this one has received wide publicity. My information is that it's still an open question whether the university will appeal.
As Steve Hadley says, colleagues will still have to challenge similar decisions on an individual basis. Having acknowledged that, this does set a very useful precedent in the following sense: as a union caseworker, if a member were to come to me under similar circumstances, I would most definitely use the tribunal outcome as leverage in an attempt to get the imposition of mandatory retirement overturned. Sometimes just the threat of going to tribunal is enough to get reconsideration of a case and having this in one's back pocket, as it were, could prove very useful.
Part of the decision concludes that the plaintiff was unfairly dismissed, on narrow facts of the case; part of it concludes that the policy under which he was dismissed constituted unlawful age discrimination, eviscerates the University's justification for its overall policy, and asserts (in not quite these words) that the university will be acting unlawfully if it continues the policy. However, the court also opens up a way the University might be able to justify the policy in future, if they're smart enough. So the argument could go either way from here.
The hearing on "remedy" (i.e. to determine the university's penalty) will be held in September.
Some context is necessary for American readers:
* Under EU/UK law (English law consistent with a line of EU ECJ decisions on this point), age discrimination is ostensibly illegal in EU/UK (under an EU anti-discrimination directive "transposed"/adopted in UK).
* But an exception is that employers in EU/UK can affirmatively impose a mandatory retirement age — if they can "justify" their use of mandatory retirement (and if they set mand.ret. at or above a statutory minimum retirement age).
* To Americans, this exception is very is odd indeed, because mandatory retirement is per se the most blatant type of age discrimination: Mandatory retirement, by definition, is a work rule saying: "You're fired when you have your birthday of X years old, because on that date will be that old."
* An unresolved anomaly under EU/UK mandatory retirement law is that, to "justify" a given employer's mandatory retirement age (under UK/EU law), the employer actually can say the purpose of its mandatory retirement is to give jobs to younger people! The logic here is opaque to Americans: Conceptually, isn't this like justifying a cap on hiring women by saying "we need that cap to give more jobs to men"? Or justifying a cap on hiring blacks by saying "we need that cap to give jobs to more whites"? Nevertheless, this "justification" actually works under EU/UK law. Here, the news article says Oxford's stated justification for Oxford's own mandatory retirement rule at Oxford is: "to improve diversity and career progression for younger academics."
* According to the news article, the English "employment tribunal" here did not question Oxford's justification/rationale for mand.ret. Rather, the Eng. "employment tribunal" challenged, on these facts, whether this particular mandatory retirement (firing this particular don because of his age) actually opens enough new jobs for "younger applicants." Here, per the news report, the English tribunal held, in essence: No, this retirement/dismissal of this particular don doesn't meet Oxford's stated rationale for mand.ret., of opening up more jobs for the young, because this don is not holding up seats that'd need to be filled by others.
* The big point is that, either way, it seems that under EU/UK law, even if this particular don wins his particular case, Oxford can retain its mandatory retirement rule and its stated, openly-discriminatory justification for the rule: "to improve diversity and career progression for younger academics."
* Indeed, the article says another English employment tribunal recently upheld some other Oxford don's mandatory retirement. Note that that other case wasn't "precedent" here. Obviously the English employment tribunals accept Oxford's rationale for its mandatory retirement rule — "to improve diversity and career progression for younger academics" — and assess that justification on the facts of each situation.
* By American standards, the issue is: Why does UK/EU law allow mandatory retirement at all? And why allow it when justified by as discriminatory a rationale as "to improve diversity and career progression for younger" employees? This case is not getting at those issues.
* While the above analysis is under current EU/UK law and is supported by a line of EU ECJ case law, no one expects the English courts to change this post-Brexit. Indeed, it's legal in the EU now for a member state to outlaw mandatory retirement. England affirmatively allows it, so presumably will continue to allow it post-Brexit.
My understanding (as a long-term observer of these discussions at Oxford, though not as a legal professional) is not that "giving jobs to young people" is in itself justifiable (because it's obviously age discrimination) but that, because new hires have a higher fraction of people from underrepresented groups than 67-year-old staff, compulsory retirement will increase representation in those groups. The 2010 Equality Act treats addressing underrepresentation as a legitimate goal, and indeed puts a duty to address it on public-sector organizations. At any rate, that's how Oxford normally defends the policy internally.
That said, it is unclear at best whether Oxford's retirement age really makes much difference to representation (part of Paul Ewart's case is that the difference is far too small for this to be a proportionate way to address it). And it was pretty obvious at the time (from the internal discussions when the retirement age was agreed by the colleges) that addressing underrepresentation was at most a minor part of the University's motivation. The main rationale was (and, I think, still is) that Oxford wants some way to get rid of underperforming faculty at 67 without having to develop a full-blown performance management system (which would then have to apply to staff of all ages, again to avoid age discrimination).
It is striking that Oxford, which is usually extremely cautious in its attitude to the law, continues to fight very aggressively for the retirement age, in the teeth of some pretty scathing tribunal results.
Anyone who peruses the debates over this matter in the relevant 2011 and 2012 issues of the Cambridge Reporter will quickly discern that David Wallace's account of the principal motivation for the unlawful effort to retain a mandatory retirement age is entirely correct not only with reference to Oxford but also with reference to Cambridge. Like Oxford, Cambridge is unlawfully endeavoring to retain a mandatory retirement age because it has no adequate system of performance management for its academics (as opposed to the members of the non-academic staff, for whom the mandatory retirement age has indeed been eliminated at Cambridge).
In the government's position paper which accompanied the 2011 statutory amendment that eliminated the mandatory retirement age in the UK, the following statement occurs: "The Government does not believe that the [retention of a mandatory retirement age] should be used as an alternative to fair and consistent performance management."
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