17 May 2016 (EJRA)

 

Voting

A debate on the resolution set out below took place at the Congregation meeting on Tuesday 17 May. The result of the vote at the meeting was 121 votes in favour, 149 votes against.

 

Postal vote

A requisition for a postal vote was received from 131 members of Congregation. A full list of signatories was published in the Gazette of 26 May.

The result of the postal vote was as follows: 741 votes in favour; 865 votes against.

The resolution was accordingly rejected.  The result confirmed the outcome of the vote at the Congregation meeting on 17 May 2016.

 

Text of the resolution

The following text was received from the signatories to the resolution, who were listed in the Gazette of 28 April 2016.

 

'Good Governance of the University in Relation to the Administration of the EJRA Scheme

 Preamble

1. Compliance with the highest standards of good governance is essential for the advancement of the common purposes of the University, and to the flourishing and well-being of all its members. While day-to-day governance is delegated to the administration, Congregation, the Sovereign Parliament of the University, has the ultimate responsibility to ensure that the highest standards of good governance are met.

2. Congregation is asked to consider recent developments concerning the scheme of compulsory retirement, known as the EJRA ('Employer Justified Retirement Age') and to determine whether the administration of this scheme meets the expected highest standards of good governance.

3. On 1st September 2014, the Appeal Court of the University of Oxford, constituted by Dame Janet Smith, retired Judge of the High Court and then Court of Appeal of England and Wales, in an appeal Galligan v. University of Oxford, brought by D. J. Galligan, Professor of Socio-Legal Studies, against unfair dismissal on grounds of age, ruled1

Regarding the EJRA as a whole:

  • The EJRA as a scheme, including the policy of imposing retirement at 67, cannot be objectively justified [para 68].
  • "The aims and objectives which could justify any compulsory retiring age ("refreshment" and succession planning) have not been shown to be weighty" [para 68].

The Judge further ruled regarding the current procedure for extension beyond age 67:

  • The procedure is "fundamentally unacceptable as a means of deciding whether someone should be dismissed". Rejection of an application under this procedure "could never amount to a potentially fair reason for dismissal": [para 100].
  • Requiring an established employee "to demonstrate that he (or she) is indispensable or be dismissed is an inevitably unfair dismissal": [para 101].

4. The Judge ruled that the University Appeal Court has jurisdiction to determine whether the EJRA was justified in accordance with the Equality Act 2010. Dame Janet further ruled that she had decided the appeal "…on issues of principle unrelated to the particular facts of the appellant's case": [para 101].

5. Despite the Appeal Court's ruling "… on issues of principle unrelated to the particular facts of the appellant's case", the judgement that the University of Oxford EJRA cannot be objectively justified has not been implemented by the University. Furthermore, the administration:

  • Has continued to apply the EJRA and ignored the fact that the judgement was decided on issues of principle;
  • Has not re-examined properly the legal standing of the EJRA in light of the ruling; the review promised by the administration is not due to report until the academic year 2016-17;
  • Has made significant changes – not "minor editing" as is claimed—to the Aims of the EJRA procedure;
  • Has insisted that the Appeal Court judgement is 'confidential' to the University (Professor Galligan has already waived his right to confidentiality);
  • Has withheld from Congregation and other staff the principal rulings of the Appeal Court;
  • Has attempted to minimize the effect of the judgement by misleadingly and inaccurately referring to the Appeal Court's rulings as only "comments" (Gazette, September 2014).

6. The consequences for the University of the administration's continuing to operate the EJRA and failing to implement the judgement of the University Appeal Court are:

  • The University therefore persists in a practice that has been ruled to be unlawful;
  • The University therefore violates a fundamental duty to act in accordance with the rule of law;
  • Since 2012, members of academic staff have been and are being forced to retire on grounds that have not been shown to be objectively justified, as required by law;
  • The University is at risk of actions for unfair dismissal;
  • The reputation of the University for probity and high standards of governance may be at risk;
  • Substantial sums of money have been spent and are likely to be spent by the University in future in defending the EJRA against legal challenges;
  • The University's ability to recruit leading academics is jeopardized, due to its having more restrictive employment practices than competing universities.

Resolution

Congregation resolves:

(1) That the EJRA be suspended forthwith pending the publication of the findings of the EJRA Review Committee to all members of the University. 
(2) That the EJRA Review Committee now be afforced with at least five members representing and answerable to Congregation. 
(3) That the afforced Committee report its findings to Congregation by 1 January 2017. 
(4) That Council and all University committees promptly disclose to Congregation all legal advice taken regarding the EJRA.'

 

Response from Council

Council considered the resolution unacceptable to it. A debate was therefore held at the Congregation meeting on 17 May.

At its meeting on 25 April, Council gave careful consideration to the resolution.

'Council considers that the University's EJRA working party (referred to in the resolution as the 'EJRA Review Committee'), which is undertaking the five-year review of the EJRA, as planned on the introduction of the policy, and which consists of members of Congregation representing all major areas of the University, is already appropriately constituted (see further Gazette No 5103, 2 July 2015, p677). Nevertheless, Council does not object to adding a further five members of Congregation to the working party, nor to asking the working party to make a report of its findings to Congregation by 1 January 2017.

Having carefully considered the matter, Council takes the view that:

(a) the EJRA policy is legally defensible as a means of meeting the Aims of the policy (www.admin.ox.ac.uk/personnel/end/retirement/revisedejra/revaim), including promoting inter-generational fairness and maintaining opportunities for career progression, refreshing the workforce as a route to maintaining the University's position on the international stage, and promoting equality and diversity;

(b) the Appeal Court's wish that its comments be made use of in the course of decision-making about the future of the policy is already being fulfilled:

i. extensive changes to the procedure for making and considering requests to extend employment beyond the EJRA and clarificatory amendments to the Aims were introduced with effect from 1 October 2015, specifically in response to the comments of the Appeal Court, and

ii. the working party reviewing the future of the EJRA is considering both the comments of the Appeal Court and the specialist legal advice taken in relation to those comments;

(c) the working party has the benefit of internal and external data, as well as legal and other advice, and is best placed to make recommendations on the future of the EJRA;

(d) a suspension of the EJRA at this stage of the annual cycle would create significant practical difficulties, for example for departments who have budgeted on the basis of retirements which would not then take place, and for those who have been appointed to replace individuals who did not then retire;

(e) the policy should remain in place at least until the conclusion of the five-year review in order to support the Aims of the EJRA (most notably refreshing the workforce and promoting inter-generational fairness and equality and diversity): to suspend the policy during the review would mean that application of the EJRA might not again contribute to the availability of vacant posts until at least October 2018; and

(f) the University seeks legal advice on the basis that it will remain privileged: to disclose that advice would waive the legal privilege in that advice. It is in the best interests of the University and its proper governance that Council can obtain privileged legal advice for the purposes of administering and managing the University. In addition, the disclosure of such advice to a broad group of individuals amongst whom there will be some who are or who might be individually in dispute with the University about the application of the policy would be particularly problematic.'

 

Transcript

A transcript of the meeting, which was published as a supplement to 26 May Gazette, is available in the right hand column.

 


1D.J.Galligan "Goodbye to the EJRA", Oxford Magazine, No. 355, Noughth Week, Hilary term 2015, p 4. Colleagues wishing to see the complete judgement of the Appeal Court should contact the Registrar