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Pensioning off the mandatory retirement age: implications for the higher education sector

Published online by Cambridge University Press:  02 January 2018

Simonetta Manfredi  and
Lucy Vickers
Simonetta Manfredi*
Affiliation:
Oxford Brookes University
Lucy Vickers*
Affiliation:
Oxford Brookes University
*
Simonetta Manfredi, Reader and Director of the Centre for Diversity Policy Research and Practice, Oxford Brookes University, Headington Campus Gipsy Lane, Oxford OX3 0BP, UK. Email: smanfredi@brookes.ac.uk.
Lucy Vickers, Professor of Law, Oxford Brookes University, School of Law, Headington Hill Hall, Headington Oxford, OX3 0BP, UK. Email: lrvickers@brookes.ac.uk
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Abstract

This article considers the implications for higher education (HE) of the removal of the retirement age in 2011. It starts with an exploration of findings from empirical research which looked at the use of the retirement provisions of the 2006 Age Regulations in the UK HE sector. It highlights a number of concerns identified as a result of that research relating to retirement practices in HE and considers how these might apply given the recent abolition of a mandatory retirement age. The article uses a legal empirical approach to explore how the law would apply to any employer in HE attempting to justify continued use of mandatory retirement. It also examines other options such as the use of incentives to retire, the use of flexible working and the increased use of performance management. The article begins with an introduction to the main findings of the research, before turning to consider the current case-law relating to the legality of retirement provisions, including the recent Supreme Court decision in Seldon v Clarkson Wright and Jakes, and the legal implications of alternative options for managing extended working lives.

Type
Research Article
Information
Legal Studies , Volume 33 , Issue 2 , June 2013 , pp. 289 - 311
Copyright
Copyright © Society of Legal Scholars 2013

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References

1. Phasing Out the Default Retirement Age Consultation Document (London: Department for Business Innovation and Skills and Department for Work and Pensions, Workplace Equality Unit, Employment Relations Directorate, July 2010); H Metcalf and P Meadows Second Survey of Employers' Polices, Practices and Preferences relating to Age Employment Relations Research Series No.110 (London: Department for Business Innovation and Skills and Department for Work and Pensions, 2010).

2. Employment Equality (Age) Regulations SI 2006 No. 1031.

3. The range of aims which may be legitimate is narrower for direct age discrimination than for indirect discrimination, as confirmed in Seldon v Clarkson Wright and Jakes[2012] UKSC 16.

4. Manfredi, S and Vickers, L ‘Retirement and age discrimination: managing retirement in higher education’ (2009) 38 Industrial Law J 343 CrossRefGoogle Scholar.

5. For a full account of the survey results, see Manfredi, S Developing Good Practice in Managing Age Diversity in the Higher Education Sector: An Evidence-based Approach (Oxford: Centre for Diversity Policy Research and Practice, Oxford Brookes University, 2008 Google Scholar), available at: https://mw.brookes.ac.uk/display/agediversity/Research+Report

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7. This trend was already highlighted by the previous research.

8. It can be presumed that most of these reasons applied to academic staff.

9. These responses reflected to a certain extent the findings from the previous research.

10. The Universities Superannuation Scheme's (USS) rules were named by several institutions as being an obstacle to flexible retirement; however, its terms have recently been changed to allow for flexible retirement.

11. Note that the solicitor's practice, Clarkson Wright and Jakes, also argued that retirement helped maintain collegiality, suggesting little appetite in the legal sector for robust performance management techniques.

12. Thus, an early career researcher may not be viewed as underperforming if they do not produce numbers of high quality publications. However, it may be that academics who have been given much more time to produce high quality research outputs, and who still do not meet these targets, could be said to be underperforming.

13. Some are concerned that performance management could negatively impact on academic freedom. It is feared that as a result of performance management processes academics may feel under pressure to pursue research in areas where they can secure quick publications at the expense of pursuing more long-term and complex investigations. This is part of a wider debate on the effect of managerialism as an expression of neo-liberal reforms in academia. See the work of Marginson, S Are Neo-liberal Reforms Friendly to Academic Freedom and Creativity? (Melbourne: Centre for the Study of Higher Education, the University of Melbourne, 2007 Google Scholar), available at: http://www.cshe.unimelb.edu.au/people/marginson_docs/Seminar28050; and Marginson, S ‘How free is academic freedom?’ (1997) 16 HE Research and Development 359 Google Scholar.

14. Another point worth reflecting upon is that our research findings suggest that the debate about the need to introduce more robust performance management appears to be focusing on performance management as a ‘remedial’ tool to be used to address underperformance. Less attention appears to have been paid so far to the notion of performance management as a ‘developmental’ tool to support employees' performance and motivation through longer working lives.

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16. The USS's rules were seen as especially problematic in promoting flexible retirement at the time of the empirical study, but these rules have since been changed.

17. It should be noted, however, that this was perceived as a major issue primarily by managers of support and professional staff rather than academics. The government is proposing to extend the right to request to work flexibly, currently enjoyed by working parents, to all employees with 26 weeks of continuous employment. The government also proposes to introduce a statutory Code of Practice suggesting that ‘employers should be allowed to take into account employees individual circumstances when considering conflicting requests’. At the time of writing, the government consultation on flexible working has been completed and a response is awaited. It will be interesting to note how the proposed Code of Practice will assist employers ‘to balance’ conflicting employees' interests.

18. Section 13(2) Equality Act 2010.

19. Although the Court was called the European Court of Justice (ECJ) in many of the cases considered, the new name CJEU is used here for consistency.

20. [2012] UKSC 16

21. Judgment of the CJEU of 16 October 2007, Case C-411/05.

22. [2009] IRLR 373.

23. Judgment of the CJEU of 12 January 2010, Case C-341/08.

24. Judgment of the CJEU of 12 October 2010, Case C-45/09.

25. Judgement of the CJEU of 21 July 2011, Cases C-159/10 and C-160/10.

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28. See J Grimley Evans ‘Age discrimination: implications of the ageing process’ in Fredman and Spencer, above n 26.

29. The inherent ageist assumptions which underlie the collegiality-based aims was recognised by the EAT in Seldon v Clarkson Wright and Jakes[2008] UKEAT 0063_08_1912 at [74], discussed further below.

30. [2012] UKSC 16.

31. Partners are not employees and therefore are not covered by the default retirement age which existed at the time under the Age Regulations 2006.

32. Seldon v Clarkson Wright and Jakes[2008] UKEAT 0063_08_1912 at [74].

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35. Ibid, at [54].

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37. This issue is explored in detail by Barnard in a paper for the Industrial Law Society Annual Conference 2011.

38. Some have pointed out that intergenerational fairness has been linked to a neo-liberal agenda intent on rolling back the state and dismantling economic and welfare functions. Vincent, Ja Politics, Power and Old Age (Buckingham: Open University Press, 1999 Google Scholar). Hence the suggestion of constructing the potential legitimate aim in terms of intergenerational solidarity. S Manfredi ‘Reshaping retirement policies through intergenerational solidarity’ (2012, forthcoming).

39. Fredman, above n 26, p 46.

40. See Manfredi and Vickers, above n 4; and Manfredi, above n 5, p 41.

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48. Ibid, at [81].

49. It should perhaps be noted that the CJEU has itself not always been consistent on this issue and has at times made stereotypical assumption in its decisions – eg, accepting the assumption that performance can decline with age. Wolf v Stadt Frankfurt Am Main, Case C-229/08 CJEU

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54. Judgment of the CJEU of 12 January 2010, Case- C-341/08.

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56. See S Manfredi, above n 41, at 76.

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