Retirement and Age Discrimination – European Court of Justice rules dismissal for retirement at 65 may not be discriminatoryMonday, March 16th, 2009
The UK’s Age Equality Regulations allow employers to dismiss employees on the grounds of retirement at age 65 and, if they have requested to continue working beyond 65, to refuse the request, after following specified procedures, without providing written reasons. There is no provision for appealing to an employment tribunal against the employer’s decision to refuse a request not to retire.
In July 2007, the charity Age Concern challenged the legality of legislation that allows employers to discriminate against employees reaching age 65. The High Court referred the issue to the European Court of Justice (ECJ).
In a written Opinion given on 23 September 2008, Advocate General Mazák proposed that the ECJ reply to the issues raised by Age Concern that a national rule that permits employers to dismiss employees at age 65 or over for retirement can be justified under the Equal Treatment Directive if
- that rule is objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market, and
- it is not apparent that the means put in place to achieve that aim of public interest are inappropriate and unnecessary for the purpose.
In general terms, the issues raised by Age Concern relate to the requirement of Article 6 of the European Equal Treatment Directive 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, and if the means of achieving that aim are appropriate and necessary.”
The requirements of Article 6 are transposed into UK law by means of the Employment Equality (Age) Regulations 2006, which came into force on 1 October 2006. As mentioned above, the Regulations allow employers to enforce retirement at age 65, even if employees apply to stay longer.
In its judgment given on 5 March 2009, the ECJ effectively confirmed the Opinion of the Advocate General, ruling that
- Article 6 does not require that the Regulations should specifically state the specific aims that objectively justify the difference in treatment that allows age discrimination in the circumstances described.
- The measures in the Regulations must nevertheless be justified by legitimate social policy objectives, such as those related to employment policy, the labour market or vocational training.
- It is for the national court to determine whether or not the Regulations are consistent with such objectives and that, in applying the discretion permitted by the Directive, the UK government could legitimately consider that the means chosen to justify the difference in treatment were appropriate and necessary.
- Article 6 of the Directive imposes on Member States the burden of establishing to a high standard of proof the legitimacy of the aim relied on in justification.
In short, the Age Equality Regulations are not, in themselves, inconsistent with the Equal Treatment Directive but it is now for the High Court to decide whether or not the setting of age 65 as the normal retirement age has been objectively justified. It is estimated that some 800 age discrimination tribunal cases are on hold, pending the High Court decision.
Age Concern England (Incorporated Trustees of the National Council for Ageing)
The Court clarifies the conditions under which member states may authorise the dismissal of workers by reason of retirement
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