This May, the University of Cambridge became one of the first UK employers to implement its own Employer Justified Retirement Age (EJRA), under which its academics will be expected to take their retirement at the age of 67. And in the courts a number of decisions appear to have justified early concerns about the use of Article 6(1) of the original EU Directive (the Framework Employment Equality Directive 2000/78/EC), which allowed the imposition of default retirement ages (DRAs) where they could be shown to be a 'proportionate means of achieving a legitimate aim'.
Two legal decisions in particular seem to have given the green light to the re-imposition of DRAs, one in the UK at the Supreme Court and the other at the Court of Justice of the European Union (CJEU) . Both cases cited, as legitimate aims, the protection of the individual worker's dignity by being able to offer retirement rather than a dismissal based on poor performance and the promotion of 'intergenerational fairness' by making room for younger workers. The Supreme Court case did highlight the significance of employers being able to prove the relevance of such aims to their particular business, and being able to show that the retirement age they had chosen was a proportionate way of meeting them. Whereas in the CJEU case, there was no detailed examination of the extent to which such a DFR actually achieved these aims or whether the means used were both proportionate and necessary to achieve them.
Clearly, where an employer seeks to impose its own EJRA ahead of any legal challenge, it is crucial to be able both to explain and justify it to the workforce. The University of Cambridge's EJRA was, as might be expected, based on considerable research and was agreed in a vote of the University's official governing body (the Regent House), whose 3,000 members were largely those being affected. Key to the decision was that more than 64% of new academic opportunities created were directly due to retirement and that at Harvard in the US, which has operated without a DRA for 20 years, there were now more academics over 70 than under 40.
It does seem clear that the DRA will not end as rapidly or decisively as campaigners were perhaps hoping for and that the future, especially for large employers, is likely to lie with well-consulted EJRAs.
Alick Miskin is head of diversity services at Grass Roots.