Advocate General Supports Retirement at 65

We have previously reported that Heyday, an organisation for people in or nearing retirement, has challenged the Government over the inclusion in the Employment Equality (Age) Regulations 2006 of a mandatory retirement age of 65 or over, on the grounds that this means that the Regulations do not fully implement the EC Equal Treatment Framework Directive 2000/78. The Directive outlaws age discrimination in employment and vocational training. Heyday wants the UK legislation amended to give workers over 65 the same protection from discrimination as younger workers. In order to settle the issue, the matter was referred to the European Court of Justice (ECJ).

The Advocate General has now delivered his opinion, which is that:

• a rule in national law, which permits employers to dismiss employees aged 65 or over if the reason for dismissal is retirement, can in principle be justified under the Directive 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; and
• the Directive permits Member States to introduce legislation providing that a difference of treatment on grounds of age does not constitute discrimination if it is determined to be a proportionate means of meeting a legitimate aim. It does not, however, require Member States to define the kinds of differences of treatment which may be justified.

The Advocate General’s opinion is not binding on the ECJ, but is followed in a majority of cases. The ECJ’s ruling is expected shortly before Christmas.