Can you force someone to retire?

Kate Palmer from HR experts Peninsula considers the wider implications of this week’s court ruling on forced retirement.

Pensions

 

This week Oxford University lost a landmark age discrimination case against a professor who was forced to quit his post before his 70th birthday. Professor Paul Ewart, the university’s former head of atomic and laser physics, spent £30,000 in legal fees to bring the case, including £5,000 to obtain official university statistics that showed the university’s forced retirement policy had a “trivial” effect on its stated aim of creating vacancies for younger and more diverse staff. Professor Ewart, now aged 73, stands to receive at least £150,000 in back pay although he has no guarantee of being reappointed to his old post after it was filled by a younger man. His court victory will put pressure on Oxford to overturn its controversial policy that allows them to dismiss academics at the age of 67. Cambridge University, one of only two other universities in the UK with the same policy, could also be forced to follow suit. Here Kate Palmer from HR experts Peninsula explores the broader impact of the court ruling.

This outcome sends a clear message to employers regarding the dangers of forcing employees to leave their roles once they have reached a certain age. Although it used to be lawful for individuals to be asked to retire at 65, provided a specific procedure was followed, this is no longer the case. Forced retirement is now considered a form of direct age discrimination. This action can be justified if employers can demonstrate a ‘legitimate aim’ and that their actions represent a proportionate means of achieving that aim. In this context, the aim must be an identified social policy aim that goes beyond business need and into broader public interest considerations.

What this case shows is that justifying this course of action can be difficult to establish. The University’s argument for inter-generational fairness, in which it sought to encourage younger people into posts through compulsory retirement of older workers once they reached a certain age, could potentially have justified their retirement policy. However, the claimant successfully argued that the policy was only creating a small number of vacancies. The respondents, in this case, were unable to back up their decision on these grounds.

Before considering any policy that does seek to introduce a compulsory retirement age, employers should think about whether such a requirement can be objectively justified. Does the policy fulfil a particular aim, is there any alternative course of action that could achieve that aim and, specifically, do the benefits and importance of this aim serve to outweigh the potentially discriminatory affect? If employers do not feel that they can fully justify such a policy, they should reconsider its necessity.

 



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