An employment tribunal has found that Oxford University acted unlawfully when dismissing 69-year-old Professor Paul Ewart because of his age.
Prof Ewart, who was head of atomic and laser physics at Oxford’s Clarendon Laboratory, was dismissed in September 2017 under the university’s application of its Employer Justified Retirement Age (EJRA) policy, which was introduced in 2011 in a bid to bring younger and more diverse staff into posts. In 2017 it changed its retirement age from 67 to 68.
Vanessa James, partner at law firm Ashfords:
It remains lawful for an employer to have a policy that imposes a compulsory retirement age provided that such policy forms part of a considered EJRA that is a ‘proportionate means of achieving a legitimate aim’.
The same policy (with the same university) was considered in the Professor John Pitcher case earlier in 2019 where a different first instance tribunal panel found that the university’s EJRA was lawful. Having had that decision it may have been that the employer became complacent in preparing for the recent case and it demonstrates that employers may find themselves having to defend the same policy in the tribunal more than once. As both decisions were first instance decisions, neither is binding unless there are issues which progress to an appeal which is not yet clear.
It also demonstrates how the test to justify discriminatory early retirement policies is entirely subjective.
Patrick Glencross, senior associate at Cripps Pemberton Greenish:
The judgment in this case will have significant consequences within the higher education sector and institutions which still apply an EJRA policy, and it seems likely that Oxford University will pursue an appeal in view of its implications. The outcome of the case depended on whether the university could establish that the EJRA policy was proportionate as a means to achieve the aims of improving intergenerational fairness and diversity. Here the University was defeated by the statistical evidence presented by Professor Ewart.
It illustrates how highly fact-sensitive are discrimination cases involving the assessment of justification defences and hence the strength of the evidence presented very much drives their outcomes. The case will put pressure on the university to abolish its EJRA policy.
In its judgement, the tribunal in Reading condemned the policy: “There can hardly be a greater discriminatory effect in the employment field than being dismissed simply because you hold a particular protected characteristic,” the ruling stated.
Discriminating against employees because of protected characteristics, such as age, is illegal under the Equality Act 2010.
But the EJRA policy was also criticised because it failed to deliver its promised benefits, the tribunal heard, as Prof Ewart provided statistical evidence showing it could only help create a small number of vacancies. This led the tribunal to agree that the university had failed to justify its policy.
Prof Ewart had worked at Oxford for 38 years until September 2017 and argued that his research was “blossoming” during his final few years. In this period he published 15 papers and took on leading roles in projects to design ultra efficient engines, including work on diesel particulate filters and three-way catalytic converters, which render exhaust gases harmless.
He claimed that his work had great importance for society, “particularly in making a contribution to solving the problem of climate change and environmental pollution being driven by emissions from combustion”.
The EJRA policy does allow academics to work beyond 69 in exceptional cases, for example, to finish important research or see a project through to its conclusion. It was brought in during 2011 partly in response to the then government’s ending the formal retirement age of 65 which theoretically meant people could carry on working as long as they wanted.
This was the fourth case of retirements being challenged at Oxford University since the Pension Act 2011. In 2014, Denis Galligan, a law professor at Wolfson College, successfully challenged his set retirement age of 67, as did Peter Edwards, a professor of inorganic chemistry at St Catherine’s College, who was also allowed to keep his job at 69. But in May 2019 an employment tribunal ruled against Professor John Pitcher, who taught English at St John’s College in Oxford. Prof Pitcher had claimed that his retirement was unlawful but the judge found that the university’s policy was justified, as it served a social purpose in providing a route up for younger academics, particularly those from more diverse backgrounds.
Such compulsory retirement policies have been abandoned by every Russell Group university other than Oxford and Cambridge.
Ewart, now 71, told the BBC, he was looking to be reinstated to his former role so he could continue his research work.
It is thought that Oxford University is considering whether to appeal the judgment.