Tribunal dismisses challenge to compulsory retirement age for Oxford academic

The employment tribunal has dismissed claims from Professor John Pitcher against Oxford University and St John’s College arising from his compulsory retirement at the age of 67.  Mills & Reeve (Nick Abbott and David Faulkner) represented the College in these proceedings.

As the employment judge said at the beginning of the Tribunal’s lengthy judgment: “This case exemplifies the much vexed question of how does an employer, in a fair and transparent way, allow for changes to take place by creating opportunities for advancement of those in its workforce from different backgrounds to achieve their full potential while at the same time balancing the needs and interests of those in senior positions who desire to remain employed?”

This is certainly the issue which has attracted the most public comment to date, though in fact the judgment addresses the legitimacy of a number of other aims behind the compulsory retirement policy, including the overarching aim of safeguarding high standards of teaching and research, and holds that all of the aims contended for were legitimate in law.

As with all cases where a compulsory retirement age is challenged on the grounds that it is discriminatory, the tribunal had two tasks: to assess the legitimacy of the aims behind the imposition of the policy, and to decide whether adopting it was a “proportionate” means of achieving those aims. Both issues were decided in favour of the University and the College. They had adopted broadly similar arrangements, since most academic posts at Oxford (including the posts held by Professor Pitcher) are joint appointments by the University and one of its constituent colleges.

The legitimacy of aims in relation to compulsory retirement has been considered in considerable detail by the European Court of Justice in a number of cases, as well as on one occasion by our own Supreme Court in a case involving a partner in a solicitors’ firm. So the tribunal was in large measure guided by legal precedent in deciding that the stated aims behind the policy were legitimate.

The issue of proportionality turned on the precise arrangements that both the University and the College had put in place, not just in relation to the age selected, but by providing for exceptions in defined circumstances and for regular reviews of how the policy was working and making adjustments as necessary. The tribunal also needed to consider whether there were any other means of achieving the stated aims behind the compulsory retirement policy which would have been less disadvantageous to those academics who wished to continue working: it concluded that there were no realistic alternatives.

This is believed to be the first employment tribunal case about the imposition of a retirement age in a traditional employment context, since the rule which allowed employers to retire staff at the age of 65 was abolished in 2011.  Although it is a first instance decision it will be of considerable interest to other employers, particularly in the higher education sector and in some of the initial press coverage has been said to presage the wider use of compulsory retirement arrangements for academic staff.  That remains to be seen.