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National retirement age possible - if justified

The Advocate General’s Opinion in the Age Concern challenge to the UK’s retirement age of 65 has just been delivered. It has concluded that national legislation can lay down a retirement age, provided it is objectively and reasonably justified. The AG stated that “a rule which permits employers to dismiss employees aged 65 or over if the reason for dismissal is retirement, can in principle be justified

• 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 in place to achieve that aim of public interest are inappropriate and unnecessary for the purpose.”

At first glance this seems good news for the UK Government. However the scope of the reference to the ECJ was limited.  The questions posed covered general principles rather than the UK’s specific position. Although the UK had set out that the social policy objective pursued by the age discrimination regulations was that of “workforce planning” and the avoidance of an adverse impact on pensions and other work related benefits, which were capable of being legitimate aims, the ECJ was not provided with any substantial information such as to allow it to assess whether the age 65 rule was justified.  

The AG’s Opinion is not binding and may not be followed by the Judges who are expected to give their definitive ruling before Christmas. Even if the Judges do follow this decision the question whether the UK’s national law is infact permissible will depend on an analysis of whether the age limit is objectively and reasonably justified.

This Opinion again spotlights the need for discriminatory measures to be justified.

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