Advocate General Jan Marzak said the UK will not have
broken EU law if it could justify allowing employers to insist on
compulsory retirement as long as it had a legitimate policy
aim.
Advocates General produce opinions before the ECJ considers a
case. The opinion is not binding but is followed in about 80% of
cases.
Age Concern has asked the ECJ to rule on whether 2006's
Employment Equality (Age) Regulations failed to properly implement
the European Directive on Equal Treatment, on which it is
based.
That Directive bans discrimination on grounds of age, yet the UK
Regulations allow employers to force workers to retire at 65. Age
Concern said that allowing employers to force retirement at or
after 65 breaches the equality principles established by the
Directive.
Advocate General Marzak confirmed that the issue is covered by
the Directive, but said that it allows for laws such as the UK's as
long as they are justified. The Court was not asked to rule on
whether they were justified in this case. The UK High Court will
rule on that.
"Not having the Advocate General’s support for our case is
disappointing for us and for the millions of older workers in the
UK," said Gordon Lishman, director general of Age Concern.
"Millions of older workers in the EU will be fuming that the
Advocate General thinks ageism counts for less than other forms of
discrimination," said Lishman. "This is not a minority issue. In
the UK ageism is already the most commonly experienced form of
prejudice and more than a million people are already working past
state pension age."
Under the UK's Regulations an employee can work past 65 if the
employer agrees, but the employer has the right to force retirement
at 65 or at its official retirement age, if that is older than 65,
without redundancy pay or compensation.
Around 260 employment tribunal cases are on hold awaiting the
outcome of the legal deliberations.
The UK Government has argued that its Regulations ban age
discrimination in all other fields, but that retirement policy was
a matter that national governments should be allowed to decide
on.
The ECJ last year ruled in a Spanish case and overturned an
Advocate General's opinion. The ECJ said that, contrary to an
Advocate General's view, retirement age policy did fall under the
scope of the Equal Treatment Directive.
That meant that the Spanish Government had to objectively
justify its compulsory retirement policy. The ECJ found that the
government had been successful in that aim and backed its
compulsory retirement policy, whose aim was to improve access to
jobs for young entrants into the employment market.
Arzak agreed that the Directive covers retirement rules.
"Council Directive 2000/78/EC of 27 November 2000 establishing a
general framework for equal treatment in employment and occupation
is applicable to national rules, such as the Employment Equality
(Age) Regulations 2006, SI 1031/2006, which permit employers to
dismiss employees aged 65 and over by reason of retirement," said
his opinion.
"A rule such as that at issue in the main proceedings, which
permits employers to dismiss employees aged 65 or over if the
reason for dismissal is retirement, can in principle be justified …
if that rule is objectively and reasonably justified in the context
of national law by a legitimate aim relating to employment policy
and the labour market and it is not apparent that the means put in
place to achieve that aim of public interest are inappropriate and
unnecessary for the purpose," said the opinion.
The ECJ has not been asked to rule on whether the UK's aim in
passing legislation allowing compulsory retirement is a legitimate
aim under the Directive. It was only asked if the Directive
actually applied to the issue at all. The Advocate General said
that it did.
The reference to the ECJ was made by the High Court, which will
ultimately decide the case in the light of the ECJ's opinion on the
matter, which is expected in the coming months.
Jon Fisher, an employment lawyer at Pinsent Masons, the law firm
behind OUT-LAW.COM, said employers need to decide now whether or
not to rely on the Regulations.
"There is a real legal risk here for employers that they need to
be aware about now rather than waiting for this decision to come
through," he said. "The difficulty is that [a decision] is going to
have retrospective effect almost certainly in the public sector and
possibly in the private sector as well."
"Employers need to decide now: are we going to take the gamble
now and rely on the Regulations and hope that [the ruling] goes in
favour of employers, or are we going to adjust out employers now,
assume [the ruling] will go against employers and manage the risk
in that way?" said Fisher.
