Fly-sheets reprinted

The following fly-sheets, etc., are reprinted in accordance with the Council’s Notice on Discussions and Fly-sheets (Statutes and Ordinances, p. 112).

Joint Report of the Council and the General Board on a retirement policy for University staff

Placet Flysheet

The academic case for retaining a standard retirement age for Officers is simply stated. A large proportion of academic posts in Cambridge only become vacant on the retirement of the holder – very few of us leave in mid-career. If a significant number of officers were to delay their retirement, then the University would be unable to maintain even the present low rate of new appointments; the unpredictable timing of retirements would also make planning of recruitment by Faculties and Departments more difficult.

Younger academic staff bring new ideas, new approaches and new vigour. We need more new blood, not less. Recruitment of younger staff also serves to redress gender imbalance.

Retirement from office does not have to mean the end of academic life: we all know colleagues whose scholarship, teaching, research and other contributions have flourished, or even blossomed, after formal retirement. Furthermore, the proposed policy allows extended employment beyond the retirement age in an unestablished capacity when it is in the mutual interest of the University and the individual. There is also the continuing option of voluntary research agreements for active researchers. The combination of new recruitment with mechanisms for retaining exceptional researchers and scholars beyond the retirement age promotes fairness across the generations.

We believe that the proposed policy is in the best interests of the University. We therefore urge you to vote Placet to this proposal.

David Abulafia	P. J. Foreman	Martin Lucas-Smith
B. Adryan	Simon Franklin	J. P. Luzio
Michael E. Akam	C. A. I. French	A. Martinez-Arias
N. Bampos	D. Frenkel	A. C. Minson
Graeme Barker	Richard Friend	T. N. Oakley
J. C. Barnes	Andrew Gamble	Tamsin O’Connell
R. J. Barnes	Moira Gardiner	C. J. O’Kane
D. C. Baulcombe	Nicholas Gay	S. M. Oosthuizen
H. K. D. H. Bhadeshia	C. A. Gilligan	Rachael Padman
William Brown	Lynn F. Gladden	J. M. Rallison
C. Brayne	D. A. Good	G. A. Reid
T. K. Carne	L. M. Haywood	S. Russell
D. A. Cardwell	Donald Hearn	F. E. Salmon
H. A. Chase	N. J. Holmes	R. J. Samworth
M. R. Clark	Andy Hopper	Jeremy Sanders
Andrew Cliff	C. J. Howe	J. G. P. Sissons
Sarah Coakley	L. E. A. Howe	J. Spence
E. H. Cooper	I. M. Hutchings	J. R. Spencer
V. A. Courtice	J. M. E. Hyland	W. J. Stirling
A. C. Davis	James Jackson	D. K. Summers
Simon Deakin	Susan Jackson	S. .P. Summers
N. A. Dodgson	Mary Elizabeth James	I. H. White
A. M. Donald	R. C. Kennicutt	D. G. Whitebread
R. J. Dowling	T. W. Körner	Joan M. Whitehead
V. M. Draviam Sastry	R. S. Langley	P. M. H. Wilson
I. M. Le M. Du Quesnay	A. Launaro	S. J. Young
Edith Marie Esch	I. M. Leslie
A. C. Ferguson-Smith	Christopher H. Loch

Joint Report of the Council and the General Board on a retirement policy for University staff

Placet Flysheet

It has been suggested that the proposal to retain a normal retirement age of 67 (also referred to as an employer justified retirement age or ‘EJRA’) for the holders of established academic and academic-related offices is inconsistent with UK and EU law. We do not believe this to be the case. According to the Equality Act 2010, ‘a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others’ (s. 13(1)). The Act immediately qualifies this rule by providing that ‘If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim’ (s. 13(2)). Section 13(2) of the Equality Act implements the EU Framework Directive on Equal Treatment in Employment (2000/78/EC), which states that ‘Member States may provide that differences of treatment on grounds of age shall not constitute discrimination if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives’ (Art. 6). The Court of Justice of the European Union, in the course of several judgments on age discrimination over the past three years, has ruled that mandatory retirement can be justified under these and related provisions where it meets one or more of a number of legitimate employment and labour market-policy related goals, including the promotion of employment opportunities for younger workers, and where the implementation of a retirement policy is effected in a proportionate way by, for example, ensuring access to an appropriate pension and putting in place a procedure for dealing flexibly with individual cases.

The arguments for and against maintaining a retirement age were carefully considered by the Working Group which reported to the Council and General Board last year. The Working Group took the view that there were arguments to support both sides, but that there was, after taking all due considerations into account, a clear case for retaining the current practice. Retaining a normal retirement age of 67 would enhance the employment and promotion opportunities of those in early- and mid-career and help ensure the renewal of the academy. Further, maintaining an EJRA would minimise the need for capability-related disciplinary and dismissal procedures of the kind which would have negative repercussions for academic autonomy and freedom of expression. A retirement age would be a proportionate means of meeting these goals if it were combined (as in the case of this proposal) with access to pension provision and flexibility in the procedures for considering requests to carry on working beyond retirement age. The proportionality of the proposal is further reinforced by the commitment biennially to review the effect of the proposed policy.

The lawfulness of any EJRA will have to be judged in the courts. Thus, while we believe that the arrangements proposed by the Council and General Board are justifiable under UK law, the legal position cannot be definitively stated in advance of a court ruling. This is unfortunate but it is an unavoidable consequence of the approach recently taken to the implementation of Directive 2000/78/EC in the UK. We can, however, say, firstly, that we believe an EJRA to be in the University’s interests; and, secondly, that a process of open deliberation and debate of the kind which the University has conducted, culminating in the current vote of the Regent House, is not simply the most appropriate way to resolve this issue in the light of the University’s tradition of self-governance, but also offers the best prospect of demonstrating to a court or tribunal that the solution proposed by the Joint Report of the Council and General Board is a legitimate and proportionate one. On these grounds, we urge a vote of placet.

David Abulafia	Paul Ffolkes-Davis	Glen Rangwala
J. H. Baker	Simon Franklin	Orsola Rath Spivack
C. S. Barnard	Moira Gardiner	G. A. Reid
R. J. Barnes	Nicholas Gay	Jeremy Sanders
William Brown	Christopher Gilligan	J. R. Spencer
M. R. Clark	C. D. Gray	Mark Spivack
R. T. Coupe	Ben Green	Simon Summers
Stephen Cowley	N. J. Holmes	Jillinda M. Tiley
Stuart Dalziel	David Ibbetson	Graham Virgo
Simon Deakin	G. A. Jermy	Michael Waibel
Athene Donald	S. E. Lintott	R. D. H. Walker
R. J. Dowling	Louise Merrett	M. T. J. Webber
I. M. Le M. Du Quesnay	Joanna K. Miles	Joan M. Whitehead
M. N. Dyson	Susan Oosthuizen	A. D. Yates
David Feldman	Emanuela Orlando
E. V. Ferran	T. J. Pedley

Non-placet flysheet

The 2010 Equality Act (as amended by the 2011 Repeal of Retirement Age Regulations) eliminated the default retirement age in this country. Hence, the dominant issue here is compliance with the law. If the Regent House endorses the efforts of the General Board and the Council to flout the law by retaining a default retirement age, such a policy will be unlawful and will be challenged through litigation. Like the Council and the General Board, the Regent House is not empowered to release the University from legal prohibitions on discrimination. We therefore encourage you to vote non placet.

The General Board and Council have contended that the retention of a default retirement age is a “proportionate means” for the realization of the “legitimate aim” of keeping entry-level faculty positions available for younger scholars. As has been pointed out in the University Discussions on May 17th of last year and January 24th of this year (transcribed in the May 26th and February 1st issues of the Cambridge Reporter), the Council and General Board have not adduced any evidence to support the notion that the problem which they aim to avert is likely to arise through the elimination of the default retirement age. They have likewise gone no way toward showing that the retention of a default retirement age would be a proportionate means of addressing that problem. American universities have continued to lead the world two decades after the elimination of the mandatory retirement age for academics in the USA. In so doing, they have devised numerous flexible arrangements to make retirement attractive without invidiously discriminating on the basis of age. There is no reason why Cambridge cannot and should not adopt a similar approach.

The Council and General Board have sought to frighten Cambridge academics into embracing the retention of a default retirement age, by warning them that such a policy is the only alternative to the introduction of a regime of performance-management. Several points should be noted in response:

First, under Cambridge’s system of governance, the introduction of a regime of performance-management will itself be a matter for the Regent House to determine.

Second, whereas some of the signers of the Report from the Council and General Board were in favor of the heavy-handed regime of performance-management that was proposed by the University (and heavily defeated by the Regent House) in 2010, we were and are opposed to that proposal. No such heavy-handed regime will be necessary to deal adequately with the elimination of the default retirement age. The management techniques already in place for monitoring academics’ proficiency in teaching and research are sufficient. After all, the requisite judgments are not fine-grained assessments of excellence, but are instead coarse-grained assessments of general competence. For such judgments, a light-handed system of performance-management is sufficient.

Third, the warnings sounded by the Council and General Board invert the actualities of the situation. Far from subjecting academics further to managerial control, the elimination of the default retirement age will expand academics’ options. Instead of being reduced to the status of a supplicant who has to rely on the good graces of administrators, any capable academic who wishes to work past the normal retirement age will be entitled as a matter of right to do so. Moreover, although the vast majority of Cambridge academics will choose to retire at the normal age, they will indeed choose to do so – rather than being classified by administrators as unfit simply on the basis of age. The elimination of the default retirement age will induce the University to devise various flexible arrangements that will make retirement attractive, in line with what has happened at American universities. Academics’ options will thereby be increased rather than constricted.

Fourth, as we noted at the outset, the matter of a default retirement age is primarily a legal issue. The University is required to comply with the antidiscrimination provisions of the 2010 Equality Act (as amended in 2011). In a response-to-consultation paper released in January 2011, the government made clear that – under the aforementioned Act – the avoidance of performance-management is not a legitimate aim for which a default retirement age can be retained.

In short, the Regent House should vote non placet. Cambridge academics will thereby keep the matter of the retirement age entirely within their own hands, instead of inviting the intervention of the courts.

Tom Blundell	Dongfang Liang	Annemarie Künzl-Snodgrass
Anne Cooke	Peter McNaughton	David J. Tolhurst
A. P. Dawid	Roger Pedersen	Nicholas Treanor
Gerard Evan	Wolfram Schultz	Lorraine K. Tyler
David M. Glover	Lawrence W. Sherman
Matthew H. Kramer	Richard J. Smith

Placet Flysheet on Grace 3 of 22 February 2012 

Joint Report of the Council and the General Board on a retirement policy for University staff 

Other flysheets explain the legal position of an Employment Justified Retirement Age (EJRA), and give the academic case for an EJRA based on the need for a mix of collaborators across a range of generations. This flysheet is concerned with a likely consequence if an EJRA is not adopted. 

If there is no retirement age, then a mechanism will be required for ensuring that officers do not stay on past their use-by date; for while it is true that most will recognise when it is time to retire, it is highly unlikely that all will. One approach, often adopted across the pond, is financial inducement. While this might be in the best interests of the individual, it is far from clear that it is in the best interests of our institution (particularly in the current financial climate). Instead, some form of strengthened performance management (some might argue including salary, as well as job, review) is a more likely alternative. Further, the provisions in the Equality Act 2010 imply that this strengthened performance management would have to apply at all stages of employment, and not just as the pension age is approached. 

To be effective performance management will need teeth. However, at present it is remarkably hard to dismiss an officer and, as the decision over the reform of Statute U demonstrated two years ago, there are strong, and widely accepted, reasons (centring on the preservation of academic autonomy and freedom) for maintaining Statute U in its present form. But without an EJRA and with performance management, at some point there would have to be a way of dismissing staff. The checks and balances deliberately built into Statute U would most likely have to be eased. 

The relative freedom that we enjoy in our work and what we choose to do stand in stark contrast to ‘performance management’. We currently square the circle by combining a very competitive selection to get an academic job in the first place with a permanent contract that ends at a definite retirement age. A selection panel can look at a person’s accomplishments at, say, age 35 and take a reasonable gamble on expected average performance to age 67, but not when there is no limit. The competition at the beginning and the fixed retirement age at the end are the quid pro quo for the years of freedom in between.

We urge members of the Regent House to vote Placet to Grace 3 of 22 February 2012. 

David Abulafia	R. J. Dowling	Jerome Neufeld
Mustapha Amrani	Peter Haynes	John Papaloizou
Richard Barnes	Nicholas J. Gay	G. P. Paternain
Natalia Berloff	B. J Green	J. A. Peatfield
Richard Gale Bryan	E. J. Hinch	T. J. Pedley
Colm-Cille P. Caulfield	N. J. Holmes	Michael R. E. Proctor
M. R. Clark	R. Jozsa	Orsola Rath Spivack
Stephen J. Cowley	E. S. Leedham-Green	I. Smith
Stuart Dalziel	J. R. Lister	J. R. Spencer
Nilanjana Datta	Martin Lucas-Smith	Mark Spivack
Peter A. Davidson	James M. R. Matheson	A.G. Thomason
A. C. Davis	Ann Mobbs	P. M. H. Wilson
A. M. Donald	Saskia Murk-Jansen

Statement on behalf of the Council

This statement is written on behalf of the Council in response to the flysheet opposing the recommendations of the Joint Report of the Council and the General Board on a retirement policy for University staff

There have been long and thoughtful discussions in the Working Group set up to consider the implications of the removal of a default retirement age in the 2010 Equalities Act and thereafter at General Board and Council. As a result it was decided to recommend retaining a normal retirement age of 67 (an employer justified retirement age, or EJRA) for established academic posts. Importantly, the legal position has also been carefully scrutinised, and it has been determined that the policy would appear to be consistent with the qualification in the Act (and recent European case law decisions) that allows an employer to have a mandatory retirement age when justified as a proportionate means of promoting employment opportunities for younger workers, as long as the actual age chosen can also be justified. With statistics showing that over the last 3 years as many as 50% of vacancies in established academic posts arise from retirement we would be unable to maintain a significant influx of new blood and improve the diversity in the academic workforce if we in effect stifle this route to turnover. Furthermore, the experience from the US, highlighted by data set out in the earlier Consultation Document, show that Harvard, as a comparator research intensive institution but without a default retirement age, has more tenured academics over 70 than under 40. We believe this provides compelling evidence that the removal of a retirement age would have a negative impact on our ability to appoint the brightest early career academics. On these objective grounds, with quantitative data to back up the contention, we do not accept the statement in the opposing flysheet, that the policy would be unlawful and flouting the law. We firmly believe this is indeed a proportionate means to achieve a legitimate aim. It should be noted that, as now, individuals will still be able to request to stay in employment in an unestablished capacity beyond the normal retirement age.

Secondly, it has been suggested that the University already has available to it sufficient management techniques to permit appropriate performance management of academics if the default retirement age was not introduced. We believe this is a misreading of the current Statutes and Ordinances, which are designed simply to deal with cases of misconduct or incapacity due to medical conditions. Likewise our current Staff Review and Development process is designed to develop careers not performance-manage them. Thus, it is hard to see what tools the University does currently have to deal with a situation that could have a significant negative impact on our reputation. The Regent House has indeed recently made clear its opposition to ‘heavy-handed’ performance management. Introducing an EJRA would avoid any necessity to revisit this debate. Voting against the recommendations would run the risk of reputational damage arising from under-performing staff, without any process in place to manage the situation.

In brief, we believe the recommendations are both lawful, and in the best interests of the University. We therefore urge you to vote Placet to this proposal.

A. M. Donald

On behalf of the Council