Matthew Arnold¡¯s of Oxford as the ¡°home of lost causes¡± has some historical basis in its choosing the Royalist side in the English Civil War. Four centuries later, the University of Oxford finds itself engaged in an internal ¡°civil war¡± over its choice of a retirement policy that seems to defy an act of Parliament.

The act in question, the Equality Act (2010), outlaws discrimination on the basis of ¡°protected characteristics¡± such as race, religion, sexual orientation and age. Parliament, however, left it open for an employer to ¡°discriminate¡± on grounds of age if such action could be objectively justified in the pursuit of legitimate aims. The majority of UK Universities accepted the letter and spirit of the law and abolished mandatory retirement.

Only Oxford and Cambridge, and more recently St Andrew¡¯s, decided that they would be exceptions. But why do the internal workings of Oxbridge matter? They matter because the employment and retirement position for every academic in all UK universities could potentially be affected. If Oxford can bypass the normal legal protections of employment using an Employer Justified Retirement Age (EJRA), then any university could do the same.

Within Oxford, the issue of mandatory retirement has proved to be extraordinarily divisive. As with other ¡°family¡± disputes the protagonists on both sides are often guilty of talking past each other. Positions are sincerely and deeply held, and are also often coloured by personal experience. The approach of my own unwanted ¡°retirement¡± will, no doubt, colour my views but this is, after all, an ¡°opinion¡± article.

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Having come clean, let me set out the arguments on both sides before commenting on some of the factors affecting the debate and suggesting how it should be resolved by considering objective factors and by independent adjudication. In an attempt at balance, I will call the two sides ¡°pro-retirement¡± and ¡°pro-work¡±.

The ¡°pro-retirement¡± side argues that mandatory retirement at a fixed age creates vacancies that aid improvement in diversity (such as increasing the proportion of women) and provides job opportunities and promotion prospects for aspiring and young academics. It also, so the argument goes, simplifies succession planning and refreshes the workforce with new ideas. It is these aims, particularly improvements in diversity and inter-generational fairness, which are deemed to render the policy lawful.

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Furthermore, mandatory retirement enables dismissal of under-performing academics without recourse to any form of ¡°performance management¡±. This, it is argued, will help Oxbridge (and St. Andrew¡¯s) avoid the fate of US universities which, it is claimed, suffer decline as a result of the aging of their academic staff.

The ¡°pro-work¡± side maintains that abolishing mandatory retirement enables academics, at the peak of their research powers, to continue to contribute to the university and society and that there is no evidence that academic performance declines with age. Furthermore, it ensures the university¡¯s ability to attract and retain world-leading academics who might otherwise move to other institutions where they can continue working; it provides more early-career help especially in the sciences since established researchers attract more funds for post-doctoral positions; recognises the increased active life-span of today¡¯s 65-year olds (now an average 85 years); provides extended employment to build adequate pension provision ¨C an important consideration given the recent changes in pension schemes; and finally, it avoids the moral stain of age discrimination. ?

The most rhetorically persuasive arguments on the pro-retirement side seem to be the effect of an EJRA on diversity and job-opportunities for the young. However, it is not sufficient for an EJRA to have legitimate aims. It must be shown to be effective and proportionate in order to be lawful.?Quantitative assessments and statistics are therefore important in evaluating the validity of arguments. Unfortunately for the pro-retirement side, there is no statistical evidence that the EJRA at Oxford makes any significant difference to improving diversity.

The reason is not difficult to understand. A simple calculation shows that mandatory retirement can have only a marginal effect on the rate of creating vacancies and thus opportunities to improve diversity. If everyone extended their working lives by 10 per cent (about 3 or 4 years) then the effect of mandatory retirement, by preventing such extension, is to? create only 10 per cent more vacancies per year. However, because more than half of all vacancies are not due to retirement, the effect is reduced to 5 per cent.

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The data also show that, at most, half of those reaching the EJRA would choose to work on, so the EJRA¡¯s addition to the stream of vacancies is only 2 to 3 per cent. Therefore an EJRA cannot be a proportionate means of addressing diversity or, for that matter, opportunities for young academics.

Behind these arguments lies the fear of performance management as the ¡°only¡± alternative, even though Oxford manages perfectly well without it for everyone below 67 and other universities have also managed without a draconian retirement policy. The fear of the ¡°American experience¡± of aging faculty preventing refreshment and advance is also unfounded. The US universities abolished mandatory retirement over twenty years ago and their top institutions continue to dominate the international academic performance tables.

Oxbridge seems prepared to dismiss active and world-leading academics rather than manage the very much smaller number of under-performers. ?

As in any dispute, arguments on both sides have differing degrees of emotional persuasiveness. However, the case for mandatory retirement fails because mathematically its effect is so small that it cannot be proportionate, and statistically there is no evidence of effectiveness in achieving its aims. Age discrimination is, thankfully, dying out. Inevitably Oxford, will catch-up with the rest of the world and realise that compulsory retirement is another lost cause.

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