The Advocate General has given an opinion stating that the compulsory retirement age of 65 in the Age Discrimination Regulations is potentially legal under EU law.
This opinion is a preliminary stage in proceedings before the European Court of Justice (ECJ) brought by Age Concern England. The case will now proceed to a full hearing before the ECJ (EDIT: our summary of the ECJ's decision is here).
The basis of the challenge
Under the Employment Equality (Age) Regulations 2006, there is an exception which allows employers to force employees who are 65 (or older) to retire without risking claims for age discrimination or unfair dismissal, so long as they follow the correct procedures. Age Concern argues that this exception is unlawful because the EU Directive on which the Regulations are based does not allow it.
If the mandatory retirement age turns out to be unlawful, employers will face age discrimination and unfair dismissal claims if they force workers to retire at 65.
The Advocate General’s view
The key points of the Advocate General’s opinion are as follows:
- As confirmed in the previous case of Palacios de la Villa, the relevant EU Directive does cover national laws on retirement ages – meaning that it is necessary for the UK’s retirement age of 65 to comply with this Directive.
- The Advocate General made it clear that age discrimination is different from other types of discrimination (e.g. race or sex), as age is a “fluid” criterion which changes over time, and age-related limits and measures are widespread in the law. This is why the relevant Directive allows member states to justify rules which would otherwise be direct age discrimination.
- The compulsory retirement age of 65 can, in principle, fall within the exception in the Directive which allows member states to introduce laws that would otherwise be direct discrimination.
- Therefore, a rule allowing for dismissal of employees over the age of 65 can be justified if satisfies the requirements of the exception – i.e. if it is objectively and reasonably justified by a legitimate aim relating to employment policy, and the means of achieving this aim are not inappropriate or unnecessary.
- The Advocate General did not go on to consider whether the UK’s retirement age of 65 was actually justified under this test, as this was not one of the questions that the ECJ had been asked to consider.
What happens next?
Although the Advocate General’s opinion is not binding on the ECJ, the court tends to follow this opinion in most cases. However, there have been some discrimination law cases where the ECJ has disagreed with the Advocate General’s view. So, it is still possible that the ECJ will decide that the UK government’s decision to provide for a compulsory retirement age of 65 is simply not allowed by EU law.
Even if the ECJ agrees with the Advocate General, this is not necessarily the end of the issue. This case has simply been dealing with whether, in principle, the applicable EU law allowed the UK government to implement a compulsory retirement age. However, the retirement age still needs to be justified in order to be covered by the exception, and this question is not before the Court. The ECJ will not deal with what aims this retirement age is pursuing, and whether the chosen age of 65 is a justified way of achieving those aims – these issues remain unresolved for future cases. If the Age Concern challenge continues after the ECJ’s decision, the question of justification will be considered by the High Court. In the previous Palacios case the ECJ did uphold a retirement age of 65 in Spain (click here for more information), but the facts of the case were somewhat different from the UK situation and so does not determine the issue.
If followed by the ECJ, the approach taken by the Advocate General is a helpful step for employers who wish to continue using a compulsory retirement age. However, this is only part of the story, and the justifiability of the government’s policy remains open to challenge.
The Incorporated Trustees of the National Council on Ageing (Age Concern England) -v- Secretary of State for Business, Enterprise and Regulatory Reform