Thursday 21 July 2011

Compulsory Retirement Age: ECJ Judgment

'Confusing' is the word that comes to mind when reading today's ECJ decision in Fuchs v Land Hessen. If you want three words, 'verging on incomprehensible' work quite well.

The ECJ was asked to decide a number of questions on when a compulsory retirement age is justified. It seems to hold (para 50) that a retirement age is potentially justified to encourage the promotion of a younger workforce. Even more controversially, it suggested it is legitimate to retire older workers to prevent possible disputes concerning employees' fitness to work beyond a certain age.

The ECJ also seems to adopt a test of whether it is "reasonable" to adopt a retirement age (paras 60 and 83), rather than whether it is proportionate to do so. Reasonable and proportionate, whilst similar, are not quite the same thing.

On the facts, the ECJ held that a German law requiring state prosecutors to retire at 65 (albeit subject to some exceptions) on a generous pension was justified.

A question which was referred to the ECJ was whether cost alone can justify discrimination (in the UK, we currently have the controversial 'costs plus' justification). Unfortunately, the ECJ did not deal with this point.

1 comment:

Anonymous said...

At first sight, this seems to be a classic non-judgment.

The CJEU recite various seemingly contradictory propositions before deciding that it is all about "appropriate and necessary means" which are up to the national courts to determine.

The judgment doesn't seem to determine that this kind of compulsory retirement is justified, but rather that it is not necessarily inconsistent with the directive, and it is up to the national court to decide whether it is justified in any individual case. Any purported justification must be backed up by some sort of evidence.

It also seems to rely on concepts of "a pension the level of which cannot be regarded as unreasonable" - which might not be so easy to argue in the UK.

I do wonder if the court may not look back on some of these judgments with a degree of embarrassment in a few years time. Ideas that discrimination is a handy way of avoiding performance management, or that one group holding a protected characteristic need to be dismissed to make room for another group do not seem to fit easily within the general tone of authorities in other areas of discrimination law.