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Oxford Retirement Policy Ruled Discriminatory by Tribunal

An Oxford University don has this week won a claim brought against the University after he was forced to retire aged 68.

The controversial policy enacted in 2011 (titled the EJRA) means that any senior University staff must retire by September 30th in the year before they turn 69. Exceptions can be made to the rule at the discretion of the University.

Oxford asserts that the policy is intended to “support the University’s mission to sustain excellence in teaching, research and administration and to maintain and develop its historical position as a world-class university”. It also makes the case that recent recruits are more diverse than existing academics, so the policy should improve diversity and equality amongst teaching staff.

 However, a recent employment tribunal found that Professor Paul Ewart, who was forced out of his job as head of the atomic and laser research physics at the Clarendon Laboratory, had been discriminated against based on his age. The tribunal also said that the University had failed to justify its retirement policy. It is understood that a similar policy is employed by the Universities of Cambridge and St Andrews, which will now be under pressure to re-evaluate their retirement procedure.

When contacted for comment, Mr Ewart told Cherwell that while he believes the objectives of improved diversity to be valuable, data has shown the policy to be an ineffective way of achieving these aims. He said: “The result means that my questioning of the university’s policy has been found by an impartial judicial verdict to have been well-founded. I have been pointing out the basic flaw in the policy for many years now starting with an article in the Oxford Magazine in 2016. I quote here from that article

“ ‘In particular the methods employed [compulsory retirement under the EJRA] were deemed to be not proportionate as the means of achieving the avowed aims. The aims themselves, such as creating opportunities for young scholars to enter the academic career path and to address issues of diversity and gender equality, etc. are worthy. So we, as an academic community, ought to seek to achieve them by proportionate means i.e. within the law that forbids discrimination on the basis of age. Judging proportionality need not be an entirely subjective exercise. It is important in framing a policy to do so on the basis of data and evidence.’

“The argument has been refined (the effect of the EJRA on the rate of creating vacancies is between 2 – 4%) and repeated in several OM articles and in debates in Congregation) but consistently ignored by the Administration and Council. The argument is also supported by the statistical data that I obtained from HESA (the Higher Education Statistics Agency) which demonstrated that there was no evidence to support the university’s claim that the EJRA was making a “substantial impact” on achieving the aims. This was confirmed by a rigorous statistical analysis by the university’s own Statistics Consultancy Service which provides statistical analysis to any member of the university.

“The judgement by the Tribunal has vindicated this as a key argument showing that the EJRA cannot ever be a proportionate means of achieving the aims and therefore it is unlawful.

“More importantly, the judgement should help the university reconsider its policy and allow active academics to continue to work if they so desire and to choose the time of their retirement as they are allowed to do in every other UK university except Oxford, Cambridge and St Andrew’s. I hope this will assist my colleagues to continue their valuable work, some of whom are doing world-leading research affecting the most important issues facing the planet such as climate change.”

Oxford did not make it immediately apparent that they would be revising the discriminatory policy. A spokesperson for the University said: “In light of this ruling the University will be considering its options, including the possibility of an appeal.”

The result for Mr Ewart follows a contrasting result from May, when a tribunal dismissed a case brought by Professor John Pitcher, a tutorial fellow at St John’s College, against Oxford University and St John’s College. The tribunal found that Prof Pitcher’s claims were “not well-founded”.

Over the course of the tribunal in May, Oxford acknowledged that the policy which forced John Pitcher’s retirement was direct age discrimination, but that the discrimination could be justified. To this end, the University had to show that the policy was a proportionate means of achieving legitimate aims. Mr Pitcher is currently in the process of appealing this decision.

It has also been revealed that the internal appeals court at the University found the retirement policy to be unjust as early as 2014. An appeal against the implementation of the policy with respect to Professor Denis Galligan was upheld by Dame Janet Smith, formerly of the High Court and Court of Appeal. Her written judgement stated that the process implemented by Oxford University was “fundamentally unacceptable”, and could “never amount to a potentially fair reason for dismissal.”

Mr Ewart will now receive back pay from the University for the time missed, but he is not guaranteed to be offered his job back at the Clarendon Laboratory. At the time of writing his position is listed as “Visitor” at the Oxford University Science Department.

In spite of this, he has informed Cherwell that he will be looking to retake employment at the Clarendon, saying “I will be seeking to be reinstated so that I can continue, in an employed basis, to work with colleagues in Engineering and Chemistry on applications of my research and to happily contribute to teaching in the university. I miss the interaction with students and graduate students now that my research group has evaporated. I hope that we can work together with the university to find a lawful and acceptable approach to retirement in the future that will be for the benefit of everyone – young and old(er)!”

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