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No heyday for age discrimination campaigners
29 September 2008
The Advocate-General has rejected a claim
launched by the charity Heyday that the UK Employment Equality
(Age) Regulations (EE(A)R), which permit a compulsory retirement
age of 65, breaches EU equality requirements. Although the
Advocate-General's view is not binding, his opinion is expected to
heavily influence the European Court of Justice (ECJ), which is
expected to give its final ruling in this case in December.
History of the case
The UK EE(A)R were introduced in October 2006.
Although they ban discrimination on grounds of age, they do allow
compulsory retirement at age 65 or over – arguably one of the most
discriminatory actions an employer can take. So long as the
required procedure is followed, compulsory retirement at 65 or over
is not unlawful and cannot be unfair.
Heyday, part of Age Concern, launched their
campaign after a survey showed that 80% of the 60,000 respondents
believed the Regulations to be unfair. They argue that, with more
than a million people already working past state pension age,
retirement on the basis of their date of birth is unjust.
They point out that with an increasing number of people working
into 'retirement' in order to make ends meet, those over 65 are the
fastest growing group in the workforce.
Organisations including the CBI argue that
keeping the normal retirement age of 65 is an essential management
tool, pointing out that employers have to consider any requests by
employees to work beyond that age.
The case was referred to the European Court by
the High Court in 2006. Around 260 cases are currently on hold in
tribunals, awaiting the outcome of this test case. There is the
potential for thousands more claims depending on the outcome of the
ECJ’s decision.
The Advocate-General’s
opinion
In his opinion the Advocate-General, Jan
Marzak, agreed with Heyday that "In line with previous case
law, rules such as the UK rules on mandatory retirement at issue do
fall within the scope of the directive.”
But he went on to say that European member
states may apply national laws to fix retirement ages as long as
they can be justified "in the context of national law by a
legitimate aim relating to employment policy and the labour
market."
So, his view is that, provided member states
can justify it, a compulsory retirement age is permissible.
What happens next?
Whilst the Advocate-General's view is not
binding it is likely to influence the ECJ judges who have
previously followed their opinions in 80% of cases. The ECJ ruling
on this case is expected in December. We will keep you
informed.
Why is this case important for
employers?
Public sector employees may be able to enforce
the European Directive on age discrimination against their employer
(the State). If the ECJ goes against the Advocate-General’s opinion
and decides that the Regulations fail to implement the Directive,
employees in the public sector forced to retire and/or those who
are refused employment at age 65 or above could submit claims for
unfair dismissal and/or age discrimination.
Private sector employees do not have any
direct rights under the Directive, but the Government would be
likely to legislate (if necessary) to bring the Regulations into
line with the Directive. All employers would then need to manage
employee performance and succession planning issues on a much more
active basis.
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