posted 28 Jan 2008 in Volume 11 Issue 5
Key barrister explains issues in EU and Uk age discrimination battles
In 2000 the EU introduced a directive that, among other things, prohibits discrimination on the grounds of age in employment and occupation. An EU 'directive’ has to be implemented in the national legislation of each member state within a given period time. The
Unusually, the EU directive gave scope for age discrimination to be justified in some situations. This means an employer can dismiss an employee because he has reached a particular age, if the circumstances justify that decision. Part of the preamble to Directive 2000/78 suggests that states can maintain national retirement ages. Nevertheless, if the employer dismisses an employee because the latter has reached a 'retirement age’, the directive requires the employer should justify the decision to dismiss.
Most member states have implemented the legislation in a way that does not entrench forced retirement. Only a handful of EU countries permit compulsory retirement without justification having to be provided by the employer, and most of these countries will only allow this if the employee has met the conditions for entitlement to a state pension. In the
Justification on economic grounds
The member states that have opted for forced retirement when the conditions for pension entitlement are satisfied have explicitly linked discrimination against those of a certain age (generally over 65) with an economic aim, namely the provision of the most stable form of economic activity (employment) to younger age groups. Generally, there is no link made between age and declining competence, although the
In Case C-411/05 Félix Palacios de la Villa v Cortefiel Servicios SA (judgment of the Grand Chamber, 16 October 2007) the applicant was born in 1940. He worked for the employer from 1981. In 2005 the employer notified him of the automatic termination of his contract of employment on the ground that he had reached the compulsory retiring age provided for in a collective agreement endorsed by national law.
The applicant sued for the dismissal to be declared null and void on the ground that it was in breach of his right not to be discriminated against on the ground of age. The European Court of Justice (ECJ) was asked whether the principle of equal treatment, which prohibited any discrimination whatsoever on the grounds of age, precluded a national law under which compulsory retirement clauses contained in collective agreements were lawful.
The ECJ ruled that the prohibition on any age discrimination had to be interpreted as not precluding such national legislation. A major factor in the Court’s decision was that the worker was not being placed in an economically precarious position by being forced to retire, as this could only happen when the conditions of entitlement to a retirement pension have been fulfilled. If those conditions were not fulfilled, no compulsory retirement could take place.
The fact that
The ECJ noted that in Spain the law in question had been adopted at the insistence of the social partners (employers and trade unions) 'as part of a national policy seeking to promote better access to employment, by means of better distribution of work between the generations’. The compulsory retirement of workers who have reached a certain age was introduced into Spanish legislation in the course of 1980. It was brought in against an economic background characterised by high unemployment, in order to create in the context of national employment policy, opportunities on the labour market for persons seeking employment. The Spanish law permitted collective agreements to include forced retirements only if they expressly included aims which were consistent with the national employment objectives. The objective of increasing employment for certain categories of employee was seen as in principle capable of justifying legislation as long as it was a proportionate means of achieving the aim in question. The Court noted in the context of the Spanish law that the social partners and member states have a wide margin of discretion in the definition of the means adopted to pursue a social aim.
When the Palacios judgment came out, some commentators in the common law countries took the view that it meant that any law permitting any form of compulsory retirement would withstand scrutiny. Gordon Lishman, director general of Age Concern
Justification on age alone
In what has become known as the 'Heyday case’, a challenge has been made to the UK’s law that permits an employer to dismiss an employee on the grounds the employee has reached 65 without being subject to legal scrutiny for that decision. It is a blanket rule that does not have the flexibility of the Spanish law, as it does not require for any social protection to be in place for the dismissed employee, and does not require the employer to justify the decision to dismiss.
Heyday, which is bringing the case against the
The case has already had a significant impact. The president of the Employment Tribunals in
In reaching that decision the ECJ will be aware that
Declan O’Dempsey specialises in sensitive and difficult employment, discrimination, public and regulatory law in the
For more on the Heyday case:http://www.cloisters.com/info_case_profile.php?caseID=259&returl=info_cases.php%3F%26amp%3Binfokeyword%3D
For more on the Palacios case: http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?where=&lang=en&num=79928983C19050411&doc=T&ouvert=T&seance=ARRET