Published online by Cambridge University Press: 28 June 2019
Experimentalism is a theory of regulation in which change is achieved via a process of ‘directly deliberative polyarchy’ within an experimentalist architecture. This paper argues that experimentalism offers a normatively desirable model for legal interventions relating to the ageing workforce, and age equality law in particular, and offers new insights into existing UK scholarship on reflexive law. Drawing on qualitative and quantitative data from UK universities, this article considers the extent to which reforms to retirement ages have promoted a form of experimentalism among UK universities. This paper offers concrete suggestions and reforms for how an experimentalist framework could be adopted in this context to enhance regulatory reform.
This research was funded by a Research Activities Fund Grant from the Society of Legal Scholars, and a Research Grant from the Socio-Legal Studies Association Grants Scheme. The author gratefully acknowledges the comments of Professor Kirsty Gover on an earlier version of this paper.
2 See eg Blackham, A Extending Working Life for Older Workers: Age Discrimination Law, Policy and Practice (Oxford: Hart, 2016)Google Scholar; Dewhurst, E ‘Intergenerational balance, mandatory retirement and age discrimination in Europe: how can the ECJ better support national courts in finding a balance between the generations?’ (2013) 50 Common Market Law Review 1333Google Scholar; Dewhurst, E ‘Are older workers past their sell-by-date? A view from UK age discrimination law’ (2015) 78 Modern Law Review 189CrossRefGoogle Scholar; Dewhurst, E ‘Proportionality assessments of mandatory retirement measures: uncovering guidance for national courts in age discrimination cases’ (2016) 45 Industrial Law Journal 60CrossRefGoogle Scholar; Sargeant, M ‘The default retirement age: legitimate aims and disproportionate means’ (2010) 39 Industrial Law Journal 244CrossRefGoogle Scholar; Vickers, L and Manfredi, S ‘Age equality and retirement: squaring the circle’ (2013) 42 Industrial Law Journal 61CrossRefGoogle Scholar.
4 ‘Reflexive law’ is a theory of law that focuses on the regulation of self-regulation, based on a view of law as an autopoietic system of communication: see Hepple, B ‘Enforcing equality law: two steps forward and two steps backwards for reflexive regulation’ (2011) 40 Industrial Law Journal 315CrossRefGoogle Scholar; McLaughlin, C ‘Equal pay, litigation and reflexive regulation: the case of the UK local authority sector’ (2014) 43 Industrial Law Journal 1CrossRefGoogle Scholar; McCrudden, C ‘Equality legislation and reflexive regulation: a response to the Discrimination Law Review's consultative paper’ (2007) 36 Industrial Law Journal 255CrossRefGoogle Scholar.
5 Sabel, CF and Zeitlin, J ‘Learning from difference: the new architecture of experimentalist governance in the EU’ in Sabel, CF and Zeitlin, J (eds) Experimentalist Governance in the European Union: Towards a New Architecture (Oxford: Oxford University Press, 2012) pp 25–26Google Scholar.
9 Sabel and Zeitlin, above n 5, p 6.
11 Teubner, G ‘Company interest: the public interest of the enterprise “in itself”’ in Rogowski, R and Wilthagen, T (eds) Reflexive Labour Law: Studies in Industrial Relations and Employment Regulation (Deventer: Kluwer Law and Taxation Publishers, 1994) p 24Google Scholar.
12 Hepple, above n 4, at 321.
15 CF Sabel Rolling Rule Labor Standards: Why Their Time Has Come, and Why We Should Be Glad of It Proceedings of the International Colloquium on the 80th Anniversary of the ILO Committee of Experts on the Application of Conventions and Recommendations (Geneva: International Labour Organization, 2007) p 264.
16 Sturm, above n 3, at 461.
17 Sabel and Zeitlin, above n 5, p 3; see also Sabel and Simon, above n 7, at 79.
18 Sabel and Simon, above n 7, at 55.
19 Sabel and Zeitlin, above n 5, p 3; Sabel and Simon, above n 7, at 78.
20 Sabel and Simon, above n 7, at 79.
21 Workplace Gender Equality Act 2012 (Cth), ss 3, 13. See further Workplace Gender Equality (Matters in Relation to Gender Equality Indicators) Instrument 2013 (No 1) (Cth). ‘Gender equality matters’ include equal pay, gender composition of the workforce, flexible work arrangements, and consultation in relation to gender equality.
22 Workplace Gender Equality Act 2012 (Cth), ss 16, 16A.
27 See further Department of Families, Housing, Community Services and Indigenous Affairs Workplace Gender Equality Procurement Principles and User Guide.
28 Workplace Gender Equality (Minimum Standards) Instrument 2014 (Cth).
29 See F Munir and others Advancing Women's Careers in Science, Technology, Engineering, Mathematics and Medicine: Evaluating the Effectiveness and Impact of the Athena SWAN Charter (2013).
31 Equality Challenge Unit Evaluating the Athena SWAN Charter: ECU Response (2014) p 3.
34 Australian Public Service Commission Tackling Wicked Problems: A Public Policy Perspective (2007) pp 3–4.
35 Rittel and Webber, above n 33, at 159.
36 Sabel and Simon, above n 7, at 56.
37 S Deakin Learning or Diversity? Reflections on the Future of International Labour Standards Proceedings of the International Colloquium on the 80th Anniversary of the ILO Committee of Experts on the Application of Conventions and Recommendations (Geneva: International Labour Organization, 2007) p 243.
38 Sabel and Simon, above n 7, at 88.
39 Sabel and Zeitlin, above n 5, p 3; see also Sabel and Simon, above n 7, at 79.
40 Sabel and Simon, above n 7, at 79.
42 Sturm, above n 3, at 479–482.
44 Bagenstos, above n 41, at 20–21, 25–26.
45 Sabel, above n 15, p 271.
47 Sturm, above n 3, at 522–524.
50 Bagenstos, above n 41, at 21, 26–34.
51 Equality Act 2006, s 8.
54 Hepple, above n 4, at 319.
55 See similarly Sturm, above n 3, at 550–553.
56 Deakin, above n 37, p 244.
58 Sabel, above n 15, p 265. Limited explanation is offered, however, for how this law is experimentalist.
60 See further Sabel, above n 15.
61 Employment Rights Act 1996, s 109.
62  IRLR 1017.
67 HM Government Opportunity Age: Meeting the Challenges of Ageing in the 21st Century (2005) p 20.
68 HM Government The Equality Strategy – Building a Fairer Britain (2010); BIS Flexible, Effective, Fair: Promoting Economic Growth through a Strong and Efficient Labour Market (URN 11/1308, 2011); BIS Phasing out the Default Retirement Age: Government Response to Consultation (URN 11/536, 2011); DWP Fuller Working Lives: A Framework for Action (2014).
71  2 CMLR 50 (Seldon).
73 Seldon v Clarkson Wright & Jakes  UKET 1100275/2007 (14 May 2013); Seldon v Clarkson Wright & Jakes  UKEAT/0434/13/RN (13 May 2014).
75 Hepple, above n 4, at 334.
76 In this paper, a classification scheme is used to enable the broad identification of universities while still maintaining source and case study anonymity. Universities have been allocated a number, and each interviewee from that university identified with a different letter. So the second respondent from the fifth university is identified with U5b. Where identifying the university would jeopardise source anonymity (eg for universities with an EJRA, which are few in number and publicly known), no source has been cited.
78 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation  OJ L 303/16.
81 Arguably, however, in an experimentalist structure this guidance should come from the legislature or executive, or a central agency (like the EHRC), not the courts.
82 See Blackham, above n 2, p 3.
83 For example, the ETs in Seldon, above n 73, Lindsay v Department for Employment and Learning  EqLR 180 and White v Ministry of Justice ET 2201298/2013 (20 November 2014), conducted a far less rigorous inspection of the retirement ages in question than that in Hampton v Lord Chancellor  IRLR 258, Engel v Transport and Environment Committee of London Councils  UKET 2200472/2012 (26 April 2013), Martin v Professional Match Game Officials Ltd  UKET 2802438/2009 (13 April 2010) or Willey v England and Wales Cricket Board Ltd  UKET 2201406/2014 (10 March 2015).
84 Bagenstos, above n 41, at 20–21, 25–26.
85 For example, Sturm considers the case of an affirmative defence to claims of sexual harassment, which could apply to any employer in appropriate circumstances.
86 This may be compared with other areas of law, where participation can be induced by potential civil liability: Garrett and Liebman, above n 79, at 293. Here, participation is deterred by potential civil liability.
87 BIS Phasing out the Default Retirement Age: Government Response to Consultation. Impact Assessment (BIS/11/634, 2011); BIS Phasing out the Default Retirement Age: Consultation Document (URN 10/1047, 2010); BIS Phasing out the Default Retirement Age: Government Response to Consultation, above n 68.
88 Though some institutions managed to undertake fairly substantial consultation prior to adopting an EJRA: see C Barnard and S Deakin ‘Age discrimination and labour law in the UK: managing ageing’ in A Numhauser-Henning and M Rönnmar (eds) Age Discrimination and Labour Law: Comparative and Conceptual Perspectives in the EU and Beyond (Alphen aan den Rijn: Kluwer Law International, 2015) pp 314–316.
89 DWF De-Regulation of Retirement – One Year On (2012). See also Eversheds Eversheds UK HR E-Briefing: How Are Employers Managing without the Default Retirement Age? (2013); R Thomas and others Recovery in Sight? The State of HR (2013).
90 Eversheds, above n 89, p 2.
91 Thomas and others, above n 89, p 9.
92 Note, however, that Oxford revised its EJRA policy from 1 October 2017 to apply to staff in grade 8 and above only: see Personnel Services Employer Justified Retirement Age (2017), available at http://www.admin.ox.ac.uk/personnel/end/retirement/acrelretire8+/ejra/.
93 This may reflect a process of peer-review: see below. Alternatively, it may show the impact of court decisions on university problem-solving.
95 See similarly ibid.
96 Or, perhaps, even more broadly if this cultivates a race to the bottom.
97 Sabel and Simon, above n 7, at 80.
98 Sturm, above n 3, at 476.
99 In contrast, union representatives felt that retirement ages were not an effective means of promoting equality, as more diverse candidates were not applying for vacant positions, and did not ‘understand the rules’ for getting short-listed for positions when they did apply. Thus, retirement ages were ineffective at achieving diversity without broader change.
100 In the Oxford University Court of Appeal: In the Appeal of Professor Denis Galligan (1st September 2014), cited in DJ Galligan ‘Goodbye to the EJRA’  Oxford Magazine 4.
101 Pitcher v University of Oxford ET 3323858/2016 (16 May 2019).
102 Thomas and others, above n 89, p 9.
103 Hampton, above n 83.
104 Martin, above n 83.
105 See Engel, above n 83, para .
106 Lindsay, above n 83.
107 Willey, above n 83.
109 Though, it does flag that legal advisers could fulfil an intermediary role in this situation.
110 Equality Act 2010 (Specific Duties) Regulations 2011, SI 2011/2260, reg 2.
111 Cohen and Sabel, above n 10, p 326.
112 Sabel and Zeitlin, above n 5, p 4.
113 Sabel and Simon, above n 7, at 79.
115 BIS Trade Union Membership 2013 (Statistical Bulletin 2014) p 5.
116 See CIPD Managing Age: New Edition 2011 (2011); CIPD Retirement Practices – Making the Right Choice! An Employer's Guide (2010).
117 BIS Business Population Estimates for the UK and Regions 2015 (2015), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/467443/bpe_2015_statistical_release.pdf.
118 Garrett and Liebman, above n 79, at 291–292.
119 Sabel and Simon, above n 7, at 80.
120 HM Government, above n 67, p 20.
121 See Blackham, above n 69.
123 These objectives also drove the abolition of the DRA and introduction of the EJRA. See, for example, BIS Phasing out the Default Retirement Age: Government Response to Consultation. Impact Assessment, above n 87; BIS Phasing out the Default Retirement Age: Consultation Document, above n 87; BIS Phasing out the Default Retirement Age: Government Response to Consultation, above n 68.
124 Bagenstos, above n 41, at 37.
129 OECD.Stat LFS – Sex and Age Indicators (2015).
130 ONS Labour Market Statistics, June 2014 (2014).
131 Blackham, above n 14.
132 Sturm, above n 3, at 559. See similarly the specific duties under the PSED: Equality Act 2010 (Specific Duties) Regulations 2011, SI 2011/2260, reg 3(1); Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011, SI 1064/2011 (W155), reg 3; Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012, SSI 2012/162, reg 4.
134 Manfredi and others, above n 74, at 393–394.