With much discussion in the media and among employers recently, the following case will be of interest to all who are considering retirement age in the workplace.
Compulsory retirement age of 65 – is it valid?
A pilot with Lufthansa CityLine had taken a case to 65 the Court of Justice of the EU (CJEU), regarding his compulsory retirement when he reached the age of 65. When he turned 65 in October 2013 he was let go by Lufthansa.
He maintained the age limit was discriminatory. He argued that no increased danger linked to the use of pilots aged 65 or over in commercial air transport has been shown by any scientifically-proven medical data. He said that deterioration of physical and mental capabilities does not begin at a specified age, but depends on factors unique to each individual.
The CJEU found the compulsory retirement to be justified, and ruled in favour of an age limit of 65 for commercial pilots, to “ensure civil aviation safety in Europe.”
The 65 age limit for pilots on commercial flights goes back to the 1944 Chicago Convention, subsequently ratified by EU Member States and built into the Commission Regulation (EU) 1178/2011.
The CJEU noted that the rules on commercial airline pilots “are based on extensive professional debate and expertise” and are objective and reasonable references for decision makers.
The CJEU concluded the EU legislature has “weighed the requirements of aviation safety against the individual right of holders of a pilot’s licence aged over 65 to engage in work and to pursue a chosen occupation, in a way that cannot be regarded as disproportionate in relation to the objective pursued age limit of 65 for commercial pilots.”
It said that the freedom to pursue a profession is not an absolute right, that a restriction can be imposed once it is not “a disproportionate and intolerable interference, impairing the very substance of those rights.”
Objective Grounds for Retirement Age
There is no checklist that is universally applicable as to what are objectively justifiable reasons for a compulsory retirement age but case law provides guidelines and examples of acceptable objective justification.
The Equality Tribunal case of Paul Doyle v ESB International (Dec-E 2012-086) provides the following guidelines in respect of enforcing a compulsory retirement age:
- Does the compulsory retirement age seek to achieve a legitimate aim?
- Is the aim legitimate in the particular circumstances of the business?
- Are the means of achievement in the aim proportionate?
Examples of acceptable objective justifications are:
- To create opportunities in the labour market
- To enable a balanced age structure in the workforce
- To encourage motivation and dynamism through the prospects of career enhancement and promotion
- To ensure the health and safety of employees
The above indicates that the Tribunal has regard for all of the circumstances of a particular case in arriving at its decision on whether a compulsory retirement is justifiable.
In addition, the custom and practice of the organisation, the pension arrangements, the contracts of employment and the collective agreements of the organisation would all be taken into account also.
(Source: IRN: Werner Fries v Lufthansa CityLine Gmbh, C-190/16)
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