Illegal to force airline pilots to retire at 60, European court
rules
Employment Law & HR update 14/09/2011
The European Court of Justice (ECJ) has just ruled that forcing
airline pilots to retire at 60 is unlawful age discrimination. The
ruling is bad news for employers who seek to impose a fixed
retirement age on staff, because their ability to do so will now be
much more limited than previously thought.
What was the case about?
The case concerned pilots working for Lufthansa, who were
required under a collective agreement between their trade union and
the airline to retire at age 60. This is different from what
international air safety law says. Although international air
safety law does not permit pilots to work beyond the age of 65,
pilots may work between age 60 and 65 subject to certain
conditions.
The union argued that the retirement age of 60 was justified on
safety grounds. The ECJ disagreed. It ruled that if international
law says pilots are safe to work until the age of 65, then that
took precedence over the agreement with the union.
More importantly, the ECJ also ruled that an attempt to justify
a retirement age must be on the grounds of “employment policy, the
labour market or vocational training”, so attempting to justify a
retirement age on “air traffic safety” grounds was not legitimate
under European law.
What reasons did the court give?
The union argued that the retirement age of 60 was justified
under three possible exceptions allowed by EU law. The ECJ rejected
them all.
The first was that it was necessary to protect public security
and health. The ECJ rejected this because international air safety
law permits pilots to fly up to the age of 65.
The second argument was that being under a certain age was a
“genuine and determining requirement” for doing the job. However,
no evidence was put before the court to support this, so again the
ECJ felt that it should be guided by international air safety
law.
The third and final argument was that the retirement age was
“objectively justified” on the grounds of air traffic safety, but
the ECJ noted that this was not one of the types of “objective
justification” permissible under the directive, which are social
policy objectives.
What impact will the case have?
The European directive which makes age discrimination unlawful
is implemented in Great Britain by the Equality Act. Because the
Equality Act is based on a European directive, tribunals and courts
in Great Britain must apply the law in accordance with rulings made
by the European Court of Justice. So this ruling, although made in
a German case, will affect how the law is applied in Great
Britain.
The default retirement age of 65 is being scrapped altogether
from 1st October and it is already unlawful for an employer to
force an employee to retire at 65 unless proceedings are already
underway.
The Equality Act does allow for exceptions – these include
national security; compliance with other laws; if age is a genuine
occupational requirement; and justification as “a proportionate
means of achieving a legitimate aim”. The problem with the
Lufthansa ruling is that it is clear that each of these grounds
must now be interpreted strictly.
Comment
Commenting on the ruling, Nick Soret, Head of Consultancy
support at Mentor said:
“This case shows how difficult it will be for employers to prove
that operating a fixed retirement age does not constitute unlawful
age discrimination. Now that the default retirement age is being
abolished, employers will have to learn to deal with an older
workforce differently, making full use of performance management
procedures and keeping in touch with their employees’ plans.
If you would like further information, and already
subscribe to RBS
Mentor,
please call the Advice
Service. If you would like more information on
how Mentor could help your business in situations like this and
many others, contact
us today for information.
Next story - Cameron seeking to water down AWD
Previous story - Amendments 'could still
be made' to AWR