Overview of the issues raised in module 7
My name is Malcolm Sargeant. I’m professor of labour law at Middlesex University Business School in London, UK and I’m talking about the age aspects of the Framework Directive on Equal Treatment in Employment and Occupation. It’s a Directive of course that covers a number of grounds in particular it includes age and I think... 2000 was a significant step forward particularly in relation to age because I’m sure it is the reasons why many governments today in the member states have age legislation on their statute book. The principle of equal treatment according to the Directive Article 2 is that there should be no direct or indirect discrimination in this case on the grounds of age. The problem with the Directive and also I think with the decisions subsequently of the European Court of Justice is that there are ample opportunities for making exceptions to the principle of age discrimination or non-discrimination.
Article 6 of the Directive is concerned with age and it actually provides for specific exceptions to the principle of equal treatment. Firstly, it states that differences of treatment on grounds of age shall not constitute discrimination under certain circumstances. They have to be objectively and reasonably justified by a legitimate aim including legitimate employment policy, labour market and vocational training objectives. In addition the means of achieving those aims have to be appropriate and necessary i.e. proportionate. It is not clear to me what legitimate employment policy actually means but the significant result of Article 6 is that it allows for the justification of both direct and indirect discrimination. And it is the only ground of discrimination in any of the equal treatment Directives which allows for the justification of direct discrimination. And I think that’s reflected in the decisions of the Court of Justice and indeed some of the national courts.
The Court of Justice I think has shown a somewhat alarming readiness to accept that compulsory retirement policies of employers can be justified as an appropriate and necessary means of achieving a legitimate aim such as creating jobs opportunities for other workers especially in the context of creating job opportunities for young workers. Palacios (Case C-411/05) for example was a Spanish case concerning a collective agreement which contained an agreed retirement age. Mr Palacios was born in February 1940 and worked for his employer since 1981. But in accordance with the collective agreement, his employer notified him in July 2005 of the automatic termination of his contract of employment on the ground that he had reached the compulsory retirement age. He made a complaint of age discrimination since the notification amounted to dismissal and the measure was based solely on the fact that he had reached the age of 65. But the collective agreement stated that in the interest of promoting employment there would be a retirement age of 65, except where the workers concerned hadn’t completed their qualifying period for a pension. So there was caveat that he had to have been entitled to a pension. But nevertheless it is one of the early decisions that shows there is a justification in terms of removing older people from the workforce in order to make room for young people to come into the workforce. And this is really an interesting concept it is something that has been called a lump of labour fallacy and it’s a fallacy of course. But it means that policies which are linked to removing older people from the workforce will result in younger people being able to enter into it. And I think that’s a problem because it’s a fact which has been accepted by the European Court of Justice in a number of cases and its also been accepted in some national courts as it got clear from the references to the Court of Justice. The problem with it of course is that it is a fallacy. There is no empirical evidence at all that removing older people from the workforce actually does create any opportunities for young people or indeed opportunities for anyone else. And so a justification which has been accepted by the Court of Justice and some national courts for intergenerational fairness I think it’s called so that there is a sharing of opportunities between old workers and younger workers, this can justify somehow the imposition of a justified retirement age and I think it’s called an employer justified retirement age so that the employer can show that because the social objectives of the country in which they operate require an encouragement of youth employment and so on, that it may be one of the social objectives that they can use to justify having a legitimate aim. The problem of course is that the Directive allows for justification for direct and indirect discrimination which amounts to a legitimate aim. There have been a wide number of legitimate aims which have been justified by the courts.
So the court has accepted and I am quite critical of them in this respect, that an exception can be made for to the general principle of equality with regard to age to facilitate the employment of younger workers by a process of older workers. There are a number of cases relating to the professions and I think its been in those cases the courts have accepted the need for or the justification of removing older people, having a retirement age in order to make way for younger people. Petersen was a German case which concerned a complainant who was admitted to the practice of panel dentist in 1974 and reached the age of 68 in 2007 when she was retired. And there were a number of legitimate aims put forward, including the problem of older dentists not being as good as younger ones but one aim concerned the sharing out of opportunity amongst the generations so that, and I quote, ‘a measure intended to promote the access of young people to the profession of dentist may be regarded as an employment policy measure’ and the Court of Justice concluded that it does not appear unreasonable for the authorities of a member state to consider that the application of an age limit leading to the withdrawal from the labour market of older practitioners may make it possible to promote the employment of younger ones. And this has been an approach that has been followed in the case of Georgiev (C 250/09), which concerned Bulgarian academics, where a Bulgaria professor was mandatorily retired and the court said effectively the same thing there and indeed in other cases.
The basic problem therefore with both the Directives in regard to age and with the Court of Justice decision is this acceptance or this possibility that mandatory retirement can be justified as some way of creating intergenerational fairness. There is no empirical evidence this is the case but he Directive allows this and I think the Court of Justice in a number of cases actually put it into practice. So it is a difficult position for many people now whose employers may contemplate having an employer justified retirement age because the Court of Justice effectively says that it is possible and that the justification can be both for intergenerational fairness and for maintaining the dignity of the older workers when they leave. And really in the future the only way this is going to change is by some cultural change which needs to take place amongst the member states and an acceptance that there needs to be empirical and hard evidence to justify exceptions to the Directive such as this one.