For so-called age equality legislation, the EU directive on age discrimination is proving pretty ageist. In September, the advocate general (AG) of the European Court of Justice held that it was perfectly lawful to force healthy, fit 65 year olds out of their jobs whether they like it or not. In most cases, this AG’s opinion will be followed by a decision along the same lines by the Court.
It looks likely that the Court will hold that the English regulations are justified even though discriminatory and therefore perfectly lawful. However, there is nothing to stop an employer having no mandatory retirement age if the employer so chooses and a number of employers have abolished retirement ages altogether.
However, some employers have welcomed the decision as it removes the embarrassment of having to tell an older worker they are not up to the job any more and the greater complexity of individual assessments for competence of older workers. Age Concern is unhappy with the ruling and says one million people are already beyond state retirement age and many want to work. 260 UK employment tribunal decisions are waiting for the final decision in this case as the cases are on the same point.
One difficulty for employers will be what to do in the meantime until the final decision is made, as employees may make retrospective claims if the Court does not follow the AG’s opinion. Any employer happy to retain older workers may choose to amend employment contracts to allow workers to continue beyond 65 but unless the employer wishes to do this, it is better, for now, to maintain the age 65 retirement age.