Retirement and Age Discrimination - Advocate General indicates dismissal for retirement at 65 not discriminatory

Written by Ian Congreave - Filed under: Equality and Discrimination on October 6th, 2008

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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.

The ECJ is not bound by the Advocate General’s Opinion. If, in due course, the ECJ confirms the Opinion, it will be for the UK government to demonstrate that what is, in effect, a statutory basis for compulsory retirement at age 65 can be objectively justified.

Some published comment on this Opinion has suggested that, if it were confirmed by the ECJ, it would be for each employer to objectively justify a decision to dismiss for retirement at age 65. This is not what the Opinion says. To quote paragraph 82: “I also agree with the Commission that …the directive…primarily targets national measures, which reflect social and employment policy choices and not individual decisions of employers. The justification of measures providing for differences of treatment on grounds of age therefore falls to be assessed at Member State level, ‘within the context of national law’.”

Further information:
The Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform

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Written by Ian Congreave -

Filed under: Equality and Discrimination on October 6th, 2008