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Law for Business

Knowhow - guidance - precedents

11 SEP 2012

Age discrimination

Compulsory retirement age

In the recent Fuchs v Land Hessen decision, the Court of Justice of the European Union (CJEU) considered whether a compulsory retirement age is justified under EU law.

Under German law, permanent civil servants have a retirement age of 65, with the possibility of an extension to age 68 by agreement. The two claimant state prosecutors had their requests to continue working to 68 rejected and brought a claim that the compulsory retirement age constituted discrimination in breach of the EU Equal Treatment Framework Directive. On referral to the CJEU, the CJEU concluded on the facts that the compulsory retirement age was justified. Although its reasoning is hard to follow, the CJEU appears to accept that both the need to encourage the promotion of a younger workforce and to prevent possible disputes concerning older employees' fitness to work are legitimate aims. The CJEU also suggested that a desire to achieve costs savings could underpin a chosen social policy but could not in itself constitute a legitimate aim.

Although the default retirement age has now been abolished in the UK, this case may be relevant to employers seeking to establish an employer-justified retirement age.

Justifying compulsory retirement

In the case of Prigge and others v Deutsche Lufthansa AG, the CJEU considered whether a German collective agreement, which forced pilots to retire at 60, was compatible with equality law.

The CJEU noted that the EU Equal Treatment Directive enables Member States to authorise social partners to adopt measures that aim to ensure public security and the protection of health. The CJEU agreed that steps to avoid aeronautical accidents by monitoring pilots' aptitude and physical capabilities could constitute such a measure but noted that both German and international law permitted pilots aged between 60 and 65 to fly in some circumstances. The CJEU held, therefore, that the prohibition on working past 60 in the collective agreement was not a necessary measure.

The CJEU also looked at whether possessing particular physical capabilities was a genuine and determining occupational requirement, aimed at air traffic safety, and therefore the prohibition on working after 60 could be justified as in pursuance of a legitimate objective. The CJEU held that it was undeniable that physical capabilities diminish with age but held that retirement at 60 could not be justified as it was a disproportionate requirement in view of other legislation, which allowed pilots to work until they were 65.

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