Oxford professor forced to retire at 69 wins age discrimination claim

Tribunal finds university’s method of bringing in younger academics was not a ‘proportionate’ way of achieving diversity

An Oxford University professor forced to retire before his 70th birthday was unfairly dismissed and discriminated against, an employment tribunal has ruled. 

The Reading Employment Tribunal found Oxford University acted unlawfully by dismissing Professor Paul Ewart, who was head of atomic and laser physics at Oxford’s Clarendon Laboratory, because of his age. At the time of his dismissal in September 2017, Ewart was 69. 

Oxford University introduced its employer justified retirement age policy (EJRA) in 2011 in a bid to bring younger and more diverse staff into the university. The policy means staff at senior grades must retire in the September before they turn 68, with the organisation increasing the age threshold from 67 in 2017.

Such compulsory retirement policies have been abandoned by every Russell Group university other than Oxford and Cambridge.

But the tribunal found the university’s policy, which was intended to foster “intergenerational fairness”, had only created a “trivial” number of new opportunities for younger academics. Forcing older staff to retire was not a “proportionate” method for achieving the EJRA’s stated aims, the tribunal found.

A spokesperson for Oxford University said it would be “considering its options” following the ruling, including an appeal. 

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In 2014, Ewart – who had worked at the university for 38 years before his dismissal – was granted permission to work for another two years until he was 69. He said he expected to be given a further extension until 2020 to complete his research on climate change.

However, he was told in February 2017 that his application to work at the university part time had been rejected. He told the tribunal that his research was just “blossoming” when forced to retire under the EJRA scheme. 

During the tribunal, Ewart claimed Oxford’s EJRA scheme was discriminatory in forcing older workers to retire. He produced evidence to show the scheme resulted in an increase of between just 2 and 4 per cent more job opportunities for younger academics.

In its judgment, the tribunal said the small increase in the number of vacancies in support of the EJRA scheme’s aim was minimal compared to its discriminatory effect on older workers. 

The tribunal also said Oxford “has not justified what would otherwise be discrimination, and accordingly on each of the points of age discrimination alleged we find that the claimant has been discriminated against unlawfully on grounds of his age”.

Ewart, who is now 71, told Times Higher Education he was “delighted” with the judgment and sought reinstatement to his former role so he can carry on his research projects.

“It has never been about money, it has been about establishing the right to work,” Ewart said. “Some of my colleagues, who are doing very important work, are faced with the same position of being forced into retirement at a time when they feel they have more important research to do.”

Joanne Moseley, senior associate at Irwin Mitchell, told People Management this case demonstrated how difficult it can be for organisations to justify enforcing retirement at a certain age.

“Employers can’t simply rely on their own reasons for imposing a retirement age – they have to show that their reasons link to wider public policies,” Moseley said. “The courts have accepted, for example, that workforce planning, protecting against incompetence, promoting intergenerational fairness and avoiding an adverse impact on pensions and benefits are all capable of amounting to a legitimate reason.”

However, even if an employer “clears that hurdle”, there is no age after which it is “safe” to retire an employee, Moseley added. Instead, employers should decide what age is appropriate to meet their policy objectives and show that they have considered less discriminatory ways of achieving their objectives than compulsory retirement, she said.

“For example, if the employer’s concerns relate to performance, this might include looking at imposing fitness or competency tests, or using performance management techniques to weed out poorly performing staff of whatever age.” 

Ewart was the second Oxford professor to challenge the university’s compulsory retirement policy. In May 2019, John Pitcher, a Shakespeare scholar and fellow at Oxford’s St John’s College, claimed he had been unfairly forced into retirement aged 67 to make way for younger and more ethnically diverse academics. However, Pitcher’s claim was dismissed