Under the Equality Act 2010, if an employee is treated less favourably because of his or her age or is part of a group put at a disadvantage by age, this will amount to discrimination if the employer cannot objectively justify its action. Action can be objectively justified if the employer has a legitimate aim and the means of achieving it are proportionate; in other words the action taken was both appropriate and necessary.
As readers will know, the previous default retirement age of 65 at which an employee’s statutory rights used to diminish no longer exists. Although it is open for universities to consider objective justification for implementing their own retirement age, to date very few UK universities have considered this. In any event we may see challenges to this approach. A judgment of the Court of Justice of the European Union in early November tackled a parallel issue. This case brought against Hungary involved the lowering of the compulsory retirement age for judges, public prosecutors and notaries from 70 to 62. One of the objectives advanced to justify this reduction was to provide a more balanced age structure and facilitate access to these professions for young lawyers. The Court decided that although there would be a positive short-term effect following the removal of 8 yearly age groups, for the medium and long term it questioned whether a truly balanced age structure would be achieved. It concluded that the provisions were neither appropriate to achieve the objective of establishing a more balanced age structure nor proportionate.
In the likely absence of a justified retirement age, university executives and managers should no longer expect that staff will retire simply because they have reached a certain age. More importantly, stereotypical assumptions that performance necessarily decreases with age should be avoided. Instead, universities should take a broader view of long term staffing management. Some employees will retire voluntarily by resignation, for example when they become eligible to receive a pension. Other older employees may have broader career aims and aspirations to achieve, which should be assessed on an individual basis. Others may want to be considered for some form of flexible retirement, which might include a phased retirement through a decreasing number of hours or a move to an alternative role. In assessing this, clearly universities should not just approach employees of a particular age. Instead, as part of your cycle of appraisals or reviews of all staff you can discuss with each of them on a consistent basis their performance, their developmental needs and their future aims and aspirations, as well as discussing the impact which the university’s future plans may have on them.