Retirement and age discrimination: Managing retirement in higher education

Industrial Law Journal

Volumn 38, Issue 4, 2009, Pages 343-364

  Manfredi, Simonetta ^a   Vickers, Lucy ^a  

^a OXFORD BROOKES UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 70849089019     PISSN: 03059332     EISSN: 14643669     Source Type: Journal    
DOI: 10.1093/indlaw/dwp025     Document Type: Article

References (38)

1. A Code of Practice on Age Diversity in Employment (London: Department of Work and Pensions, 1999).
2. However, this can depend on the form of work involved, with some occupational groups more affected than others. Moreover, the link was lessened for women, whose poverty or wealth remains linked to that of their male partners. See E. Bardasi and S. P. Jenkins, Income in Later Life: Work History Matters (Bristol: Joseph Rowntree Foundation, 2002).
3. Winning the Generation Game. Report of the Performance and Innovation Unit (London: Cabinet Office, 2000) 28.
4. K. Karst, 'The Coming Crisis of Work in Constitutional Perspective' (1997) 82 Cornell LR 523, 532.
5. V. Schultz, 'Life's Work' (2000) 100 Colum LR 1881.
6. See also H. Collins, 'Discrimination, Equality and Social Inclusion' (2003) 66 MLR 16.
7. Staff Employed at HEFCE-funded HEIs: Update, Trends and Profiles (London: HEFCE, 2008).
8. See N. Bamforth, M. Malik and C. O'Cinneide (eds), Discrimination Law, Theory and Context (London: Sweet and Maxwell, 2008) 1103-10.
9. For examples of multiple discrimination, see Fairness and Freedom: The Final Report of the Equalities Review (London: The Cabinet Office, 2007).
10. On multiple discrimination generally, see S. Hannett, 'Equality at the Intersections: The Legislative and Judicial Failure to Tackle Multiple Discrimination' (2003) 23 OJLS 65.
11. S. Fredman, 'The Age of Equality' in S. Fredman and S. Spencer (eds), Age as an Equality Issue: Legal and Policy Perspectives (Hart Publishing, Oxford, 2003).
12. Ibid, 46.
13. See s. 80F Employment Rights Act 1996 (as amended by the Employment Act 2002 and extended to those caring for adults by the Work and Families Act 2006), Disability Discrimination Act 1995 and Employment Equality (Religion and Belief) Regulations 2003 (SI 2003 No. 1660).
14. See N. Dandridge and P. Grattan, Age Discrimination at Work (Liverpool: Institute of Employment Rights, 2006) 28.
15. Employment Equality (Age) Regulations SI 2006 No. 1031, reg 4, where an individual is treated less favourably because he or she has brought discrimination proceedings, or done anything relating to a discrimination action such as prepare or give evidence.
16. Employment Equality (Age) Regulations SI 2006 No. 1031, reg 4. This includes where, on grounds of age, a person engages in unwanted conduct which has the purpose or effect of violating another's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for another.
17. However, discrimination on a ground related to disability can be justified. When originally drafted, the Disability Discrimination Act 1995 provided that direct discrimination on grounds of disability could be justified. This was amended by the Disability Discrimination Act 1995 (Amendment) Regulations 2003 to distinguish between discrimination on grounds of a person's disability which now cannot be justified; and direct discrimination on grounds related to a person's disability which can be justified. This distinction means that discrimination only because a person is disabled cannot be justified. Discrimination for a reason related to disability, for example, because a disabled person is incapable of performing an aspect of the job, can be justified.
18. Seldon v Clarkson Wright and Jakes ET/1100275/2007.
19. [2008] IRLR 258.
20. Additional exceptions apply to the use of age in relation to redundancy and the statutory minimum wage. Regs 31 and 33 of the Age Regulations.
21. See the new ss 98ZA-98ZH ERA 1996 which set out the new regime. See also C. Kilpatrick, 'The New UK Retirement Regime, Employment Law and Pensions' (2008) 37 ILJ 1.
22. In some pre-1992 universities this is 67-68, in post-1992 universities, it is usually 65.
23. Where the employer has a normal age for retirement over 65, then the dismissal will only be fair as long as the employee has reached that higher age. If the employer has a normal retirement age under 65, then the dismissal can only be fair if the lower retirement is not discriminatory, in other words, if the employer can justify the use of the younger age for retirement.
24. Case C-388/07 R (on the application of the Incorporated Trustees of the National Council on Ageing (Age Concern England)) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] IRLR 373.
25. R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin).
26. s 98(4) ERA 1996.
27. Some of the pre-1992 universities that took part in this project have a retirement age for academic staff of 67 or 68. By contrast, all the post-1992 universities that took part in this study have a retirement age of 65.
28. For a full account of the research methodology and findings, see S. Manfredi, Developing Good Practice in Managing Age Diversity in the Higher Education Sector: An Evidence-Based Approach (Centre for Diversity Policy Research and Practice, Oxford Brookes University, Oxford, 2008).
29. Equality Challenge Unit, Statistical Report (London: ECU, 2008).
30. A highly significant Pearson chi-square result (at the 1% level) of P = 0.000 highlighted a strong statistical interaction between age and the statement about importance to have a fixed retirement age to enable younger employees to progress in their career.
31. It was not possible to split the results by ethnicity as numbers of respondents under each ethnic minority category were too small to be statistically significant and allow a meaningful analysis.
32. A highly significant Pearson chi-square result (at the 1% level) of P = 0.000 highlighted a strong statistical interaction between gender and preferred retirement age.
33. A highly significant Pearson chi-square result (at the 1% level) of P = 0.000 highlighted a strong statistical interaction between gender and 'not enough pension'.
34. Equality Challenge Unit, Statistical Report.
35. A highly significant Pearson chi-square result (at the 1% level) of P = 0.000 highlighted a strong statistical interaction between age and preferred retirement age and age and expected retirement age.
36. HEFCE 2008/26, Staff Employed at HEFCE-funded HEIs: Update, Trends and Profiles (London: HEFCE, 2008).
37. Gender Impact Assessment (2007), www.dwp.gov.uk/pensionreform/pdfs/ GenderImpactAssessment-5-Dec2007.pdf at 150 retrieved 9 January 2008.
38. See Manfredi, Developing Good Practice in Managing Age Diversity in the Higher Education Sector, op. cit.