Steeles Law Employment Professional Support Lawyer, Elizabeth Stevens comments.
The case was heard by the ECJ back in July 2008 and in September 2008, the Advocate General delivered his opinion that national rules permitting the retirement of employees at 65, whilst discriminatory on the grounds of age could, in principle, be justified.
We have since been waiting, with bated breath, for the final decision of the ECJ. As is often the case, the ECJ judgment does not provide us with the clarity we were seeking and the case has been sent back to the High Court for a final determination. However, the ECJ seems to have followed the Advocate General’s opinion and has confirmed that the EU Equal Treatment Directive does not require member states to draw up a specific list of what amounts to justification in the context of age discrimination. The aims which are likely to amount to justification are broad ‘social policy’ objectives, such as employment policy or vocational training objectives, rather than reasons specific to the employer. The ECJ has confirmed that it is for the national court to ascertain whether the compulsory retirement age is justified by such an aim and whether the means chosen were appropriate and necessary to achieve that aim.
Comment
So where does that leave us? We will have to wait a bit longer for a ruling by the High Court but the ECJ has at least paved the way for the Regulations to be held as properly implementing the Directive and for the retirement age to remain in place. We know that the default retirement age is permitted in principle under the Directive; what remains to be decided is whether the Government’s aims in introducing the retirement age can be justified. We are unlikely to have a definitive answer for several more months.
If you require advice on the issues raised in this article or on employment law in general please contact Elizabeth Stevens or another member of the employment team on
noremp@steeleslaw.co.uk
or 01603 598000.
To read the judgment in full click here.