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Setback in age reform?
25 March 2009
Actually, any decision other than that reached by the European
Court of Justice (ECJ) would have been a major step into the
unknown, leading to a possible significant increase in the working
population at a time that would least suit the government and the
tax payer.
Background
The UK’s Employment Equality (Age) Regulations (EE(A)R) permit
employers to impose a compulsory retirement age for employees of
65. Heyday, part of Age Concern, launched a claim that this was
contrary to the European Directive on discrimination, on grounds of
age. They said their claim reflected the public opinion in a survey
they carried out.
The case was referred to the European Court by the High Court in
2006, leaving around 260 tribunal cases on hold, awaiting the
outcome.
The decision of the ECJ
The ECJ has ruled that member states can impose a compulsory
retirement age if they have a legitimate aim, justified by social
policy objectives, and the compulsory retirement age is an
appropriate and necessary way of achieving this aim. The case will
now be referred back the High Court in London for a decision on
this point.
So we have not moved forward from when we reported the
Advocate-General’s opinion. A compulsory retirement age is
permissible if a member state can justify it.
Any guidance so far?
The UK’s compulsory retirement age only applies to employees and
certain other limited categories of worker. It does not apply to
judges and partners. In these cases a compulsory retirement age
must always be justified. This has led to a small number of cases
regarding justification being reported already.
Hampton v Ministry of Justice concerned a court
recorder, and Seldon v Clarkson Wright and Jakes concerned
a partner in a law firm; both were retired at age 65. The tribunals
in both cases, decided that the aims which the respondents claimed
justified the compulsory retirement, were legitimate. In Hampton,
this was to maintain a reasonable flow of new appointments; and in
Seldon it was to ensure collegiality between partners, i.e. they
avoided the ignominy of having to tell a partner whose performance
was declining that they ought to leave. Neither were able to show
that the provision was proportionate or reasonably necessary to
achieve those aims.
It seems the problem in both cases was lack of evidence to back
up the impact of allowing employees to stay on beyond retiring age.
However, the only sure way of obtaining the evidence would be to
allow people to stay on and see what happens.
Challenges to retirement ages have now become ‘de-rigueur’ for
those about to be retired. Two High Court judges are challenging
their enforced retirement at age 70.
The High Court decision
The High Court must now decide whether a national default
retirement age of 65 is appropriate and necessary to achieve some
legitimate aim. The tribunal cases so far may help to identify
factors which might justify the default retirement age but the
government will somehow have to find evidence that those
considerations apply nationally, and not just in those
workplaces.
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