Report of Discussion: 8 October 2024

Tuesday, 8 October 2024

A Discussion was convened by videoconference. Deputy Vice-Chancellor Mr Roger Mosey, SE, was presiding, with the Registrary’s deputy, the Senior Proctor, the Junior Pro‑Proctor and nine other persons present.

Due to time limitations, the Deputy Vice-Chancellor ruled that the eight sets of remarks received by the Proctors ahead of the Discussion be included in the formal record without being read out. Contributions to the Discussion were made as follows:

Joint Report of the Council and the General Board, dated 18 July 2024, on the review of examination regulations following the marking and assessment boycott

(Reporter, 6750, 2023–24, p. 806).

Mr B. B. Knight (Christ’s College):

Deputy Vice-Chancellor, I am speaking today in my capacity as the undergraduate member of the Council of the School of Humanities and Social Sciences, a School which was heavily impacted by the marking and assessment boycott last year.

I would like to begin by thanking the Task and Finish Group as well as staff in Education Services for the efficiency with which they have undertaken this review. For students in the Humanities and Social Sciences, the recommendations presented in Annex B of the Joint Report seem to strike a good balance between the need for flexibility in times of disruption and for consistency and academic standards upon which students and academics can rely.

Nevertheless, there is one point that remains of concern: in the proposed new Regulation 7, the General Board ought to consider and clarify how Examiners may arrive at a decision to graduate candidates who have not yet been assigned a final class. The Report, but not the Ordinance, uses the phrase ‘beyond doubt’, and students would benefit from clarification of whether this is to be an academic judgement of the Examiners and the General Board or a strict computation of whether any possible marks on remaining papers, no matter how improbable, would prevent a student from graduating. Either method comes with its own challenges, but students should have certainty of which is to be employed. Further, I hope that, if a similarly severe disruption were to recur, arrangements could be made to allow students for whom too few marks were available to still participate in General Admission, as they did last year. That flexibility reduced students’ isolation and improved their experience even where they could not yet graduate.

As the Task and Finish Group moves into Phase 2 of its programme, I hope that they might also consider how decisions taken by Examiners or the General Board are communicated to students. During the marking and assessment boycott, many students were confused by the many messages that they received from their Departments, Colleges, and Education Services, all of whom were working hard to ensure that students had the best information as quickly as possible; however, it is also important that students know what information is relevant to them and their Tripos. I appreciate the work that is currently being undertaken to improve student communication across the University, and, though this may seem a purely operational consideration, I hope that the Task and Finish Group will consider how to ensure that decision-making processes established by the Ordinances in Chapter III are conducive to predictable and clear communication with students.

Although the Report reflects a strong commitment to improving students’ experience of examinations during disruption, I hope that the Council and the General Board will also give attention in the coming year to the operational arrangements that underlie effective assessments. Whether or not the Framework for Assessment persists, many Faculties and Departments are seeking stability and certainty, as are their students. In establishing methods of assessment moving forward, it is important that all Faculties and Departments be given the option to select among the range of available methods according to their academic judgement, even where this might require greater expenditure.

I appreciate the work of the Task and Finish Group as represented in this Report and the balance that they have found, and I look forward to seeing their Phase 2 recommendations.

The remarks sent to the Proctors in advance of the Discussion follow below in order of receipt.

Professor G. R. Evans (Emeritus Professor of Medieval Theology and Intellectual History):

Deputy Vice-Chancellor, this Report makes reference to ‘a point made by the Acting Commissary’ in his response to a representation made to him under Statute A IX 1(b). In a case where a Commissary’s decision under the Rules of Procedure (Statutes and Ordinances, p. 64) is relied on as authority for proposing a constitutional change, it – or at least the passage referred to – should surely be published? The Commissary’s decision includes lengthy and detailed analysis of the responsibilities and powers of the General Board and the exercise of its powers, which are at issue once more in this Report.

The General Board’s powers formerly included the creation of Ordinances but those were reduced to the framing of Regulations during the Technical Review of the Statutes a decade and a half ago. This Joint Report of the Council and the General Board ‘aims to provide a clear explanation of the actions the General Board may choose to take, under its existing authority’ and also records the General Board’s intention to make new ‘provision in the General Board Regulations for certain postgraduate taught courses’. This may include new General Board Regulations.

However, approval of this Report will extend the General Board’s authority in specific respects by changing both Ordinances and Regulations. This is all carefully tabulated but it is quite a leap to permit the General Board ‘to revise dates in Ordinance during industrial action or other disruption’. This must not be allowed to become the thin end of a wedge, restoring the General Board’s power to modify Ordinances.

There was a notification to the Office for Students over examination arrangements. Concerns that there might be more were mentioned in fly-sheets last time Examination Regulations came under scrutiny.1 The notification involved the OfS ‘Condition of Registration’ E2, which requires among other things that a provider of higher education ‘operate in accordance with its governing documents’. This concern will remain in the OfS records and makes it the more important that the present Graces enable Cambridge to continue to do that.

Dr W. J. Astle (MRC Biostatistics Unit):

Deputy Vice-Chancellor, I should begin by declaring that I am the Membership Secretary of the Cambridge branch of the University and College Union (UCU), although I make these remarks on my own behalf. I am also the person who made the representation to the Commissary under Statute A IX 1(b) concerning the decision-making of the General Board during the 2023 marking and assessment boycott of the UCU, which is referred to in paragraph 9 of this Report.

My request for review under Statute A IX addressed the decision of the General Board

to use, on a case‑by‑case basis and applying specific limited criteria, its existing ability under Regulation 1 of the Ordinance for the Approval of Class‑lists to allow the final meeting of the Examiners to take place without all Examiners being present.1

That decision was made despite the earlier rejection by the Regent House of several proposals of the Council to mitigate the effects of the boycott, due to concerns about their consequences for academic standards.234 The proposals rejected included the temporary dilution of the Ordinances requiring that Tripos examination class‑lists and M.Phil. examination pass-lists are signed by all those present at final meetings of the Examiners as well as the creation of a temporary mechanism – similar to that which is described in the newly proposed Regulation 7 for the Ordinance for the Approval of Class-lists – to allow examination candidates to graduate before their marks had been completely collated.

In his decision, the Acting Commissary ruled that, despite the results of the ballots of the Regent House on the Graces of 15 March 2023,234 the General Board did have the power, under Regulation 1 of the Ordinance for the Approval of Class-lists5, to excuse boycotting Examiners from attending final meetings of Examiners of Tripos examinations, but that it had – probably inadvertently – broken its own General Regulations for the Master of Philosophy by Advanced Study,6 by excusing Examiners from final meetings of the Examiners for the M.Phil. Degree. Nevertheless, he found ‘the fact that some examiners were in breach of their duty to attend did not invalidate the meeting’.7 This was because – contrary to the assumption motivating the General Board’s decision to excuse boycotting Examiners, namely that the final meetings would otherwise be invalid – ‘there is no quorum as such defined in the statutes for an examiners’ meeting, and there is no proper basis for implying one’.7 In particular, the requirement that Examiners sign off a class-list or a pass-list is not intended to indicate that such a list was approved unanimously at a quorate meeting but ‘is simply of evidential significance, removing any possible doubt as to what exactly was agreed [at the meeting]’.7

In this context, the requirement in the newly proposed Regulation 5 (for the Ordinance for the Approval of Class‑lists) that the General Board be ‘satisfied that academic standards have been and will be fully maintained’ when it allows Examiners to absent themselves and the requirement in the newly proposed Regulation 4 that unauthorised absences must be approved retrospectively by the General Board seem sensible introductions. Without these changes (and probably even with them) there appears to be no mechanism to invalidate a meeting of Examiners that chooses to sign off a class-list or pass-list despite being insufficiently qualified because of absences.

Annex C of the Report explains that in response to the rejection by the Regent House of the Council’s proposal to moderate temporarily the effects of the University’s examination Ordinances and Regulations, the Acting Vice‑Chancellor notified the Office for Students (OfS) ‘of a breach of condition of registration E2 (good governance)’ and ‘noted that the University would undertake a review of its exam regulations’. It would be useful to know which aspect of condition E2 the Acting Vice-Chancellor believed the University to have breached and why, since in rejecting several of the Council’s proposals the Regent House decided nothing more than to maintain the University’s usual procedures. Moreover, as the fly-sheets arguing in opposition to the Council’s proposals noted, the mitigations, if adopted, risked breaching other conditions of registration of the OfS.4

The University’s examination regulations suffer from ambiguities and this Report may go some way towards clearing them up. However, it was the decision of the Regent House to reject the Council’s proposed mitigations rather than any concern about the clarity of the existing regulations that caused the Acting Vice-Chancellor to commit the University to a review. Concerningly, Phase 2 of the Review is ‘to consider whether some or all of the regulations should remain as Ordinances subject to Regent House approval, or would more appropriately be located as regulations under control of the General Board’.

In committing to a review the Acting Vice-Chancellor appears to have put himself at odds with a decision of the Governing Body in deference to a regulator that has come under Parliamentary criticism, among other things, for having ‘little regard to the need to protect institutional autonomy’.8 On what authority did the Acting Vice‑Chancellor offer up a review intended to prevent the repetition of a lawful decision of the Regent House?

Paragraph 4 of the Report explains that the ‘The Council and the General Board endorse the two general principles guiding the review’. The first of these is that ‘the interests of students should be protected’. The phrase ‘the interests of students’ appears five times in the newly proposed Ordinances and five times in the newly proposed General Board Regulation. It echoes the language of the OfS, whose ‘regulatory framework is designed to deliver the four primary regulatory objectives that are designed to protect the interests of students’.9 Section 2 of the Higher Education and Research Act 2017 requires that the OfS must have regard to

the need to encourage competition between English higher education providers in connection with the provision of higher education where that competition is in the interests of students and employers, while also having regard to the benefits for students and employers resulting from collaboration between such providers.10

Does this ‘student interest’ proposed for the revised Ordinances and the new Regulation refer to a consumer interest or an educational interest?

The newly proposed Regulation 7 for the Ordinance for the Approval of Class‑lists and the phrase ‘provided that for those candidates sufficient marks are available to enable a class to be awarded’ in the newly proposed Regulation 6, are equivalent to mitigations that were rejected by the Regent House in the ballots on the Graces of 15 March 2023. For that reason they should surely be subject to ballots of the Regent House.

Topic of concern to the University: Future of the EJRA

(Reporter, 6752, 2024–25, p. 3).

Mr R. S. Haynes (University Information Services):

Deputy Vice-Chancellor, I am a Senior University Computer Officer based in the University’s Information Services, and a long-standing UCU1 member.

This summer’s ballot on the recommendations of the Joint Report on the University’s Retirement Policy and Employer Justified Retirement Age (EJRA)2 created an unwitting alliance between those who wanted to abolish the EJRA for some but not all affected staff and those who voted, often as a firm second choice, for no change to the existing EJRA. Perhaps I should share that I am one who has been affected by the change, in my case as an active University academic-related officer whose last day of employment would have been on Monday of last week, but who now enjoys no such artificial restrictions. I am glad for the ability to continue to serve in the University without such artificial and unnecessary restrictions, but hope the same sense and formal considerations will be extended at the soonest to the remaining University academic officers who now comprise a smaller staff group who are unnecessarily restricted by the current compulsory retirement age.

It is vital to note that the change to the target group for the adjusted EJRA now affects only the academic officers who are carrying out the core of the University’s mission, including teaching, research and scholarship. By negatively impacting this group we are also negatively impacting the main work of the University, which also affects our global reputation and ability to attract and retain future world‑leading academics.

The outcome of the voting in July was largely guided by an imbalanced use of widespread University communications, including so many emails and circulars and staff webpages, which were blocked from similar use by those in the Regent House advocating abolition of the EJRA for all staff. Along with such imbalanced and unfair communication practices, were misleading assertions that getting rid of the EJRA entirely might somehow hurt the University. In fact, reducing the number of staff affected by the EJRA has made matters worse, both more unfair and more unsafe in terms of legal scrutiny.

We have not clearly heard any robust case for the full meaning of the ‘J’ in EJRA, which is a fundamental requirement that any such policy is objectively justified by the employer before being agreed, and in order to be lawful. Objective justification is a legal and moral requirement, and is a high bar to reach, sharply distinct from basic assertions, as well as either speculation or experimentation. The objective proof has to be in place before imposing what is otherwise an unjustifiable discriminatory policy. Without such formal objective justification, there is no valid basis to approve or enforce any type of discrimination.

As ACAS clarifies, in line with accepted moral and legal principles and practice:

Under the law, there can be objective justification if the employer can prove both of the following:

•there’s a ‘legitimate aim’, such as a genuine business need or a health and safety need

•the discrimination is ‘proportionate, appropriate and necessary’ – this means the legitimate aim is more important than any discriminatory effect.3

It is notable that we were informed by the Penty report, and in the related efforts to persuade younger academics, that it would be in their interest to maintain an EJRA. Regrettably, the Penty report had many flaws, including that, contrary to the suggested increase for them, few younger Cambridge academics would be selected for the vacancies in question (due to selection from an international field, and the average appointment age being over 40). In addition, its unshared statistical methodology and data sets presented unjustifiable conclusions, resulting in the report being greatly misleading in its recommendations. A rigorous rebuttal of the report and its conclusions was prepared in the Linton et al article and the Penty report flaws summary.4

These were attempted to be shared in good time before and in the run-up to the ballot, but this effort was partly frustrated by the lack of similar channels for broad communication with other Regent House members and the wider University. As noted above, the legality of the EJRA is of utmost importance, however this was barely touched on in the Penty report, so it is a matter of great concern that the Regent House has voted to break the law, with potentially serious damage to its reputation and ability to raise funding from charitable donors.

It is important to note that the Employment Tribunal on the EJRA at the University of Oxford judged that the actual resulting effect of a 2–4% increase in the rate of creation of vacancies was ‘trivial’, not proportionate, and therefore unlawful. This judgment was upheld by the Employment Appeal Tribunal and confirmed in four subsequent ET judgments against Oxford. Contrary to some assertions, the EJRA at Cambridge is essentially identical in all relevant aspects to that at Oxford, since Oxford’s policy was modelled on that of Cambridge. This means that the Cambridge EJRA of 67 was also unlawful because it was not proportionate. Raising the age to 69 has reduced its effect to less than 2% and so makes it even less proportionate.

Will the Council now share a report on the updated EJRA, inclusive of the objective justification for the adjusted EJRA now applicable to a reduced staff population? Will the Council also help us understand the full case and accompanying proof for such objective justification, along with any related considerations such as the consultation and review to consider any workable alternatives and overall impact on the University community?

Dr J. P. Skittrall (Department of Pathology and Trinity College):

Deputy Vice-Chancellor, I have a good deal of sympathy for the concerns behind the request for a Discussion on this matter. As the extensive debate on this topic prior to and during the ballot of the Regent House in July demonstrated, this has proved a difficult area in which to achieve a balance that gives intergenerational justice. The only reasonable alternative to a fixed retirement age is a mechanism to remove people who are no longer performing. For academic officers, such a mechanism would be a clear assault on academic freedom – and, dare I say it, quite plausibly a mechanism that would in fact reduce the age at which people ended up having to retire.

If we have ended up balancing things well, there will be no ‘winners’, and there will be some who will be unfortunate victims of the fact that funding in the university sector is limited. At this point I feel that, like almost everybody involved in this debate, I should declare an interest. I hold a fixed-term, non-renewable contract and so am still outside the entrance to this bottleneck created by society’s successes in increasing longevity and by the size of the post-war generation.

However, when I voted on this issue in July, I took my decision as a member of the governing body of the University (and indeed voted against my probable personal best interests). From a perspective of good governance, we have taken our decision on this matter, recently, and I do not think the procedural objections raised by the preceding speaker reflect new information having come to light that should cause us to revisit that decision. I must therefore question what the legitimate goal of requesting this Discussion actually was?

As we are currently being reminded further afield, one of the features of a well-functioning democracy is people recognising when a decision they do not like has nonetheless been settled. I could recount a few such decisions the University has taken that, in my view, fall into that category, but that, nonetheless, I have had to accept.

It is possible that whatever decision the University took would be challenged in an employment tribunal. If the purpose of this Discussion is to stave off that possibility, and the costs involved – particularly the prospect of a litigant being pursued for the University’s costs – then I can only express my deep sympathy at the conundrum the requesters find themselves in. However, I would express the hope that a tribunal judge would realise that his or her acting as an arbiter of whether a person’s academic merit should result in employment beyond a particular age would be just as impossible to reconcile with true academic freedom as a line manager acting as that arbiter. I would further express the hope that such a judge would pause to think very carefully before reversing a decision made by a large body of experts on the particular application of the principles to the local case.

The remarks sent to the Proctors in advance of the Discussion follow below in order of receipt.

Professor R. V. Penty (Department of Engineering and Sidney Sussex College):

Deputy Vice-Chancellor, I am Head of the School of Technology but give these remarks in my capacity as the former Chair of the Retirement Policy and EJRA Review Group. I say former capacity as of course the Review Group submitted its report1 to the University over six months ago. This was accepted by the HR Committee, the General Board and the Council. There was then an unusually involved debate on what of course was a sensitive topic, resulting in a ballot outcome2 where, in what I understand to be the highest turnout in living memory, the recommendations were accepted in the second count by 71% of those voting.

The Topic of concern states that a tiny proportion of the University is now subject to the EJRA and this calls into question its justification as a result. In fact the number of people affected by the EJRA has not changed all that significantly as a result of the ballot. There are fewer than 400 established academic-related staff and approximately 1,800 established academics and hence the percentage of all university staff remaining under the EJRA has fallen from about 16% to 13%.

I am not a lawyer, but it is my understanding from those much more qualified than me that employers can apply an EJRA to certain staff categories whilst not applying it to others. What is important is whether the employer is justified in applying it to a particular staff category. This, as discussed in detail in the Review Group’s report, is determined by applying the tests of legitimate interest and proportionality and is not determined by how many staff are in a particular group as a proportion of all staff. I do not want to rehash yet again the arguments made in the report and at the Discussion of 28 May.3 To summarise, the Review Group considered that these tests were met for established academic staff but were not for established academic-related staff, and this formed the basis of its recommendations on this point.

The subject of the EJRA has been discussed in much detail by various groups and in many fora over the last eighteen months. There has been extensive consultation and debate, culminating in the decisive vote of the Regent House in July. Most of the recommendations have already been implemented as a result of the ballot. The outstanding one, namely to simplify the extensions process and to improve post-retirement engagement for those who want, was highlighted by the Vice-Chancellor in her annual address to the University4 and will be taken forward during the coming year.

It is surely now time to move on.

Professor R. Rau (Judge Business School):

Deputy Vice-Chancellor, the revised Employer Justified Retirement Age (EJRA) policy at Cambridge University has become even more problematic and less justifiable than its previous iteration. This policy, which now applies only to University Teaching Officers (UTOs) and sets the retirement age at 69, raises serious concerns about its equity, legality, and effectiveness.

Firstly, the revised EJRA creates a stark inequality among University staff. By affecting only UTOs, it forces academic staff into compulsory retirement while sparing academic-related staff. This discrepancy is difficult to justify and appears arbitrary at best.

Secondly, the foundation upon which many Regent House members based their vote – the Penty report – has been shown to be deeply flawed in its statistical analysis. The report claimed that the EJRA created, on average, 27 more vacancies per year, representing a 40% increase in the vacancy creation rate. However, rigorous statistical analysis has demonstrated that this claim is wildly inaccurate. The actual effect of an EJRA on the vacancy creation rate is less than 4%, and with the revised age of 69, this effect diminishes to a mere 1.6%. As multiple judgments by employment tribunals have held, this minuscule impact cannot be considered a proportionate means of achieving the policy’s stated aims.

Thirdly, the legality of the EJRA is highly questionable. The Penty report barely addressed the lawfulness of the policy, a glaring omission given its discriminatory nature. It is deeply concerning that the Regent House has effectively voted to implement a policy that may well be unlawful, potentially damaging the University’s reputation and its ability to secure charitable funding.

Furthermore, the EJRA has failed to demonstrate any significant positive impact on diversity or intergenerational fairness. A comparison between Oxford and Cambridge (which have EJRAs) and 21 other Russell Group universities (which do not) found no evidence that the EJRA has promoted intergenerational fairness, created career opportunities for younger academics, or affected the proportion of academic staff over 65 in any meaningful way.1

The policy is also counterproductive to Cambridge’s academic excellence. It has adversely affected the University’s ability to attract world-leading academics and has caused, and will continue to cause, eminent Cambridge academics to leave prematurely for more accommodating institutions. This ‘brain drain’ directly contradicts the University’s mission to maintain its position at the forefront of global academia.

Moreover, the justification that the EJRA creates more vacancies for early-career academics is fundamentally flawed. The vast majority of those appointed as UTOs at Cambridge already hold tenured posts at other universities and are selected from an international field. Thus, the EJRA does virtually nothing to improve the prospects of early-career academics at Cambridge.

It is worth noting that the total number of University teaching offices is not fixed, as previously claimed. Between the introduction of the EJRA and 2022–3, the number of those offices actually increased from 1,578 to 1,866. This undermines the argument that the EJRA is necessary to create opportunities for younger academics.

The revised EJRA also raises ethical concerns. Effectively, it represents a majority vote by those who benefit from the policy to impose a discriminatory and disadvantaging policy upon a minority – the UTOs. The morality of such action is highly questionable.

Lastly, the use of the EJRA as an alternative to performance management is expressly forbidden by parliamentary guidance. Its application in this manner is highly damaging to the work of the University, as it results in the dismissal of high-performing academics ostensibly in order to remove a very small number of underperforming individuals. Unfortunately, because of the lack of a performance management system, the EJRA has the perverse effect of not removing or disciplining the rare underperforming members of the University’s academic staff before the retirement age.

In conclusion, the revised EJRA at Cambridge University is even less defensible than its predecessor. Its minimal impact on vacancy creation, questionable legality, failure to achieve stated aims, and potential for damaging the University’s academic standing all point to the need for its abolition. The policy appears to be an unjustifiable form of age discrimination that does not serve the best interests of the University or its academic community.

Professor M. H. Kramer (Faculty of Law and Churchill College):

Deputy Vice-Chancellor, as a British employer seeking to retain a mandatory retirement age for its academic members of staff, Cambridge University is legally obligated to provide an adequate rationale for doing so. Legally as well as morally, the burden of proof lies on the University to justify its age-based discrimination. Through the Review Group chaired by Richard Penty, the University has sought to discharge its burden of proof by contending that the abolition of its mandatory retirement age would significantly reduce the number of vacancies each year for entry-level academics. However, as is shown in a sustained rejoinder by Oliver Linton and Raghavendra Rau and others to the report issued by the Penty Review Group, the efforts of the Review Group to supply a justification for the University’s mandatory retirement age are fatally undone by errors and inconsistencies and unsubstantiated pronouncements in the Group’s statistical analyses.1

As is recounted in the Linton/Rau document, the best modeling of the likely effects of the abolition of the University’s mandatory retirement age indicates that any reduction in vacancies for entry-level academics will in fact be trivial (between 1% and 4%). As five employment tribunals have held in five consecutive successful lawsuits against Oxford University2 – the only other English university to retain a mandatory retirement age since 2011 – such a negligible reduction in entry-level vacancies is far too small to be a legally recognizable justifying factor. It cannot render lawful the age-based discrimination in which the University is engaging through its retention of a mandatory retirement age.

Members of the Penty Review Group have also invoked a few ancillary rationales for the retention of a mandatory retirement age. Each of those additional rationales is rebutted both in the Linton/Rau document and on the ‘End EJRA’ website.3 One of those ancillary justifications should receive some brief attention here. Supporters of a mandatory retirement age suggest that, if it is eliminated, it will have to be replaced by the University with a system of performance management. Three responses to such a concern are warranted here. First, as has been stated by successive employment tribunals and by a parliamentary position paper that accompanied the 2011 Repeal of Retirement Age Amendment to the 2010 Equality Act,4 the use of a mandatory retirement age as a substitute for an adequate system of performance management is unlawful. Second, most if not all of the components of a satisfactory system of performance management are already routinely operative within the workings of the University: probationary-period assessments, course evaluations, promotions assessments, REF inclusion or exclusion, professorial pay-grade reviews. Indeed, those components generate more fine-grained appraisals than will be necessary in any adequate system of performance management. Third, any additional measure that would involve an amendment to the University’s Statute C or its Schedule cannot be introduced without the approval of the Regent House.

In short, the justifications for a mandatory retirement age propounded by the University through the Penty Review Group are untenable. Hence, the University has not discharged its legal burden of proof for its retention of a mandatory retirement age. That discriminatory policy leaves the University vulnerable to spates of successful lawsuits.

Professor Sir Simon Baron-Cohen (Department of Psychiatry and Trinity College):

Deputy Vice-Chancellor, the revised EJRA at Cambridge is even more inequitable, unjustifiable, and disproportionate than the previous one, for several reasons.

First, the revised EJRA at Cambridge only affects UTOs which means academic staff lose their jobs through compulsory retirement and academic-related staff do not.

Second, many members of the Regent House based their vote on the Penty report on the EJRA which recommended Cambridge should maintain an EJRA, but the Penty report has been shown to be statistically deeply flawed. This means the voting members of the Regent House were misinformed. A rebuttal of the report and its conclusions can be found here.1

Third, the EJRA is illegal. The Penty report barely mentions the lawfulness of the EJRA. It is a matter of concern that the Regent House has voted to break the law, with potentially serious damage to the University’s reputation and ability to raise funding from charitable donors. The Penty report claims that the EJRA creates, on average, 27 more vacancies per year, i.e. an increase in the vacancy creation rate of 40%. This claim has been shown to be wildly inaccurate. The actual effect of an EJRA of 67 on the vacancy creation rate is less than 4%. This more accurate and realistic estimate, according to the critique of the Penty report, is based on a simple estimate of the effect of the EJRA on the vacancy creation rate (VCR) using objective statistical data (from the Higher Education Statistics Agency and reports from Oxford and Cambridge Reviews of their EJRA). Assuming an academic career spans age 40–67, i.e. 27 years with an EJRA, compared to 31 years (40–71) without an EJRA, the EJRA shortens the career by 4/31 = 13%, and so increases the VCR by 13%. However, over 50% of vacancies occur for reasons other than retirement and so the increase in VCR is only 6.5%. Furthermore, at least 50% of those reaching 67 will retire voluntarily and so the increase in the VCR at most is reduced to 3.25%. The revised EJRA of 69 will result in a career shortening of 2/31 = 6.5%. Vacancies for other reasons (50%) reduce this to 3.25% and voluntary retirements reduce it to 1.6%. A change in the number of vacancies each year by less than 2%, at most, by the revised EJRA is trivial and cannot be justified in law as a proportionate means of creating opportunities for younger people.

Furthermore, creating vacancies and appointing people at age 40 does nothing for early career academics. The vast majority of those appointed as UTOs at Cambridge already hold tenured posts at other universities and are selected from an international field. The EJRA does virtually nothing for the prospects of early career academics in Cambridge. The Employment Tribunal on the EJRA at the University of Oxford judged that an effect of 2–4% increase in the vacancy creation rate was ‘trivial’, not proportionate and therefore unlawful. This judgment was upheld by the Employment Appeal Tribunal and confirmed in four subsequent ET judgments against Oxford. The EJRA at Cambridge is essentially identical in all relevant aspects to that at Oxford, since Oxford’s policy was modelled on that of Cambridge. This means that the Cambridge EJRA of 67 is also unlawful because it is not proportionate. Raising the age to 69 reduces its effect to less than 2% and so makes it even less proportionate. A rigorous statistical analysis found no evidence that the EJRA had any effect on diversity or intergenerational fairness by comparing Oxford and Cambridge with 21 other Russell Group universities.2

In summary the analysis by Dr Dan Lunn, Fellow of Royal Statistical Society and Consultant at Oxford’s Department of Statistics, found that the data provide no evidence that the EJRA at Oxford and Cambridge

•has had any effect in promoting inter-generational fairness

•has produced career opportunities for the younger generation

•has resulted in the proportion of academic staff over the age of 65 being significantly different from that same proportion in the rest of the Russell Group of universities.

Some additional points to note:

1.The EJRA has had an adverse effect on Cambridge’s ability to attract world-leading academics. In addition, it has caused, and will continue to cause, world-leading Cambridge academics to leave prematurely to move to more enlightened universities where they can continue their productive careers. The EJRA causes a ‘brain drain’.

2.The vote of the Regent House for the policy was effectively by a majority vote by those who benefit from the policy, to impose a discriminatory and disadvantaging policy upon a minority – the UTOs. The morality of such action is questionable.

3.The Penty report’s primary justification for the EJRA is to create more vacancies each year for those in the early stage of their career. The logic of this argument is that those seeking a career in an academic-related or other type of office are to be disadvantaged by a reduced number of opportunities for employment relative to those seeking a career as a UTO. No justification is given for favouring in this way one type of university employee over the other.

4.The Penty report argues that the EJRA results in cost-saving. Cost-saving, however, is not a legitimate aim that would constitute a justification for operating a discriminatory policy. In any event, the Penty Group’s estimates of costs saved are greatly excessive because the Group’s estimates of the numbers of academics in their posts past the retirement age are greatly excessive.

5.Parliamentary guidance relating to an EJRA expressly forbids its use as a means of performance management. Its use as an alternative to performance management is highly damaging to the work of the University as it dismisses academics performing at the height of their powers in order to remove a very small number of under-performing persons.

Professor G. R. Evans (Emeritus Professor of Medieval Theology and Intellectual History):

Deputy Vice-Chancellor, in July the Regent House voted against abolishing the EJRA but made some fundamental changes. The ‘academic-related’ are no longer subject to it, nor those aged between 67 and the new retirement age of 69, so the new EJRA will vacate far fewer posts.

These changes bring its very lawfulness under the Equality Act 2010 (Age Exceptions) Order 2012 freshly into question. To justify its Employer Justified Retirement Age the University has been relying on its own ‘Aims’, including ‘inter-generational fairness and career progression’ and enabling ‘effective succession-planning’.1 The extent to which the forced retirement of an even smaller proportion of its employees can fulfil these aims should be more than a matter for a Discussion. A new EJRA calls for a Report and a Grace.

It was stated at the outset that the implementation of the EJRA in Cambridge ‘would be regularly monitored’. The first of the promised Reviews concluded in 2016 with some adjustments to the Aims.2 A further review planned for 2019–20 was postponed because of the Covid crisis. The Report of the Retirement Policy and EJRA Review Group established in February 2023 recommended that Cambridge’s ‘objectives’ should stand largely as framed at the beginning of its EJRA.3 In November 2023, after a series of judgments in the Employment Tribunals and the EAT had found that Oxford’s EJRA was ‘not a proportionate means of achieving a legitimate aim’, 120 Professors signed a letter to the Vice-Chancellor calling for a fresh vote. They argued that the ‘evidence presented at the tribunal suggests that a similar conclusion applies to Cambridge’.4

A Joint Report of the Council and the General Board on the University’s Retirement Policy and Employer Justified Retirement Age was published on 15 May 2024.5 The ensuing ballot prompted a fistful of fly-sheets (preponderantly in favour of its proposals), and a Statement by the Council that without the EJRA ‘the number of available established posts is otherwise restricted by the availability of funding and broadly static student numbers’.6

Disclosures in response to a recent Freedom of Information request now make it far from clear that this is an accurate description of the availability of ‘established posts’. It appears not to be the case that the total number of University teaching offices is fixed. Between the introduction of an EJRA and 2022–3 it rose fairly steadily from 1,578 to 1,866 with a leap from 2,010 (2020–1) to 2,027 in the academic year 2021–2 before settling back to 398 in 2022–3. The creation of Teaching and Scholarship Offices may explain this temporary hump in the numbers but will certainly have added to them.

Nor are the restrictions on ‘available established posts’ operating quite as the Council suggests. Vacated teaching offices are commonly not refilled in the year they become available for fresh appointment and they are more often filled by ‘new recruitment’ than by ‘internal transfer’. So the career prospects of existing employees do not seem to benefit as much from the EJRA as claimed.

The Council’s mention of ‘available established posts’ should not be lost sight of in connection with the continuation of an EJRA. While an EJRA now affects a far smaller category of those holding established offices, unestablished academic and academic-related posts whose holders do not face forced retirement have been multiplying.

The Council’s Notice in the Reporter of 12 June, in response to the Discussion on the establishment of a Professorship of Social Anthropology, ended with a promise. ‘The Council can confirm that the review of established and unestablished posts will take place in 2024–25’.7 In the same issue its Notice in response to the Topic of concern calling for abolition of the EJRA undertook ‘that there will be a separate review of established and unestablished posts in 2024–25’, with reference to the protection of academic-related officers under the Schedule to Statute C.7

It is hard to rely on these assurances. The need for a review of the University’s practice in appointing to unestablished academic posts has been recognised for quite some time. Varsity touched on it in November 2015, when it had been pointed out by the Board of Scrutiny that year.8 Postponements followed. In Discussion in July 2023 the then Secretary of the Board of Scrutiny pointed out that the Board had ‘periodically drawn attention to the growth in the number of unestablished posts in the University and asked the Council to clarify its policy and criteria for creating such posts’.9

He noted that the Council had agreed that the HR Committee would review the use of unestablished and established roles in the University, starting in 2022–23, but that ‘notwithstanding the Council’s agreement, earlier this year the Director of HR informed the then Chair of the Board that because of the pressure of other work the HR Committee had decided to delay embarking on the review’.9

Both established and unestablished posts and research careers were the subject of a reminder in the Board’s Twenty-seventh Report in 2022 of the ‘recommendation in the Board’s Twenty-sixth Report that the HR Committee be instructed to devise a policy and criteria for determining whether a post should be established or unestablished. The Board will await the Committee’s conclusions with interest’.

Another excuse for the repeated deferrals was published by the Council in its Notice in the Reporter of 26 July 2023:

The Council has agreed that there will be a review of the use of established and unestablished posts, following a request from the Board of Scrutiny. This work has been put on hold until the review of the Retirement Policy and EJRA has been completed.10

The Twenty-eighth Report, published a year ago questioned:

whether the EJRA review is proceeding as expeditiously as it might, given its importance to staff across the University, particularly those approaching retirement, and the associated reputational and legal risks. The Board urges the Council to accelerate the review if possible, to ensure publication before the end of 2023–24.11

The EJRA Review is now in print. The Board’s Twenty‑ninth Report will perhaps ‘urge’ again, but harder? It is needed for the better consideration of the future of the EJRA.

In her annual Address on 1 October, the Vice-Chancellor expressed her confidence that those applying for academic posts in Cambridge are not put off by the level of salary they can expect. She made passing reference to the current ‘project on reducing the gender pay gap and one on improving support for academic staff through the retirement process, a need highlighted by the EJRA debate this summer’.12 However, it is hard to see how the ‘retirement process’ can be said to be ‘supportive’.

Active calls for reform continue. A FAQ page13 and a website lists arguments for and against the EJRA. Those seeking its abolition argue that the EJRA has been unsuccessful, not least in that it ‘did not achieve its intended goal of increasing opportunities for young academics’.14

Whether a vote on abolition would go the same way now that the EJRA has undergone substantial change surely needs to be tested, and promptly. It just needs a Report to the University to begin the academic year with Recommendations leading to a Grace so that the Regent House may decide formally whether to approve it or not?

Professor P. J. N. Baert (Department of Sociology and Selwyn College):

Deputy Vice-Chancellor, in July, the Regent House voted for the option suggested by the Review Group that was headed by Professor Penty.

The media sometimes present the Regent House as a self-governing body of academics who collectively decide on their own fate. I have noticed that Cambridge academics with established positions (‘academic University officers’ in Cambridge parlance) often adopt a similar language, as if the Regent House represents their collective will.

However, the Regent House consists of a variety of groups, including (besides established academics) administrators (‘academic-related’), academics who do not occupy established posts, and retired academics.

Over the past few decades, the composition of the Regent House has changed substantially. The proportion of academic-related staff (both established and non‑established) has increased, as well as the percentage of non‑established academics. Established academics (academic University officers) now form a minority.

This, in itself, is not problematic. But it is when applied to this particular issue.

Why does this matter? It is relevant for various reasons.

First, option A was worded in a way that combined (a) the continuation of age discrimination against a minority (established academics) and (b) the lifting of the EJRA for the other employees. It means that, unlike the previous EJRA, age discrimination now only affects a minority. This precise wording was unusual, but secured the vote.

Indeed (and secondly), the group adversely affected by the vote (academic University officers) form a minority in the Regent House. Academic-related and non-established academic staff were in a position to vote in a way that discriminated against established academics whilst lifting the EJRA for themselves.

Thirdly, this injustice was compounded by the concerted efforts by members of the Penty Review Group to persuade both academic-related and non-established academic staff to vote for option A, aided by the false argument that the retention of the EJRA would lead to a large increase in the vacancy rate.

Fourthly, this anomaly is particularly striking because the reputation and general brand of the University rests to a large extent on the accomplishments of the group that is now being discriminated against.

What possible effects can we expect from this discriminatory policy?

Firstly, there will be widespread discontent. There is already. Nine hundred people voted for option B, that is for the abolition of the EJRA for all employees. We can safely assume that a majority of those 900 were academics with established positions who know that, at some point, they will be forced to retire because of the votes by the rest of the Regent House. This is bound to create resentment and ill-feeling. The University prides itself on providing a healthy work environment for all staff, but a large number of those affected by the EJRA feel very differently.

Secondly, there will be less good-will amongst the academics affected by the EJRA. The running of this University relies to a large extent on the voluntary input by senior academics who perform a variety of additional duties, such as mentoring and leadership. It is unlikely that they will perform those tasks with the same energy and commitment given that they know that others within the institution have decided that they have no part in the future of this University.

Thirdly, there will be more confusion and inequity at College level. Each College within the University will now have to revise their Statutes and Regulations in the light of the new system of EJRA. The new two-tier system (with the EJRA applicable to established academic posts only) will lead to discussions about what type of post falls under which category (is the post of Senior Tutor academic or academic-related?) and whether the EJRA applies to academics who combine posts (does the EJRA apply to someone who is 50% CTO and 50% Admissions Tutor?). Colleges will inevitably come up with different arrangements. This will create more of a sense of inequity.

Fourthly, there are the well-documented problems with the hiring and retention of outstanding academics, further undermining the reputation of this University as a global academic institution. I know I am at risk of flogging a dead horse, but the mixture of complacency and denial on this matter will eventually come to bite us. It already has. I am currently on a search committee for a senior position in the department and various plausible candidates are put off at the prospect of leaving their post for what is effectively a fixed-term post in our department. Cambridge is not that attractive.

Fifthly, there will be legal cases. In relation to the EJRA, the University is already faced with at least one lawsuit, and it will soon be faced by many more. (Preparations for the lawsuits are very actively underway.) Recently, Oxford University managed to lose five cases of age discrimination at the Employment Tribunal, wasting vast amounts of money in the process (resources that could, of course, have gone towards the creation of academic posts). It is a sad state of affairs to have a university facing lawsuits by its own senior academics. The reputation and global brand of the University will be tarnished.

Why will there be legal cases in relation to this EJRA and why is the University most likely to lose them?

The Penty report devoted less than 1% of its text to the lawfulness of the EJRA. However, the EJRA can only be justified if the objectives are legitimate and significant, if the EJRA is a proportionate means for obtaining the objectives and if no other means are available to achieve them. Let us look at the issue of proportionality first and then end with the issue of alternative measures.

As we know, Linton and Rau have written a convincing rebuttal of the Penty models.1 But we can use some more accessible reasoning, as developed by Professor Paul Ewart in his successful case against the University of Oxford. According to this logic, the estimate of the effect of the EJRA on the vacancy creation rate (VCR) uses objective statistical data (from the Higher Education Statistics Agency and reports from Oxford and Cambridge Reviews of their EJRA). Relying on information from the Penty report, we can infer that an average academic career in Oxford and Cambridge spans roughly 29 years (40–69) with an EJRA compared to 31 years (40–71) without an EJRA. The EJRA shortens the career by 2/31 = 6.5% (rounded up) and so increases the VCR by 6.5%. However, over 50% of vacancies occur for reasons other than retirement and so the increase in VCR arising from the EJRA is only 3.25%. Furthermore, at least 50% of those reaching 69 would retire even without an EJRA, and so the increase in the VCR attributable to the EJRA is reduced to 1.625%.

A change in the number of vacancies each year by less than 2%, at most, by the revised EJRA is entirely negligible and cannot be justified in law as a proportionate means of creating opportunities for younger people. It is precisely on this basis that Oxford lost their court cases.

Are there alternatives to the current impasse?

The short answer is yes. So far, the University has not properly exhausted other ways of enhancing inter‑generational progression. One of the steps which could be taken is to link the lifting of the EJRA for established academics with a concerted effort to enlist the more senior members in a fundraising campaign for junior posts. For instance, there could be a formal expectation for Professors (say, from Grade 12 onwards) to be involved in fundraising of this kind and for this task to be included as part of their workload. This would be a more imaginative and humane step towards enhancing the creation of posts for young people than the current discriminatory measure where people know they face the guillotine before they reach 70.