In April 2011 my colleague Kath Kelly wrote an article about the end of the statutory retirement age and highlighted some possible alternatives. The time is now upon us because this Friday 30 September is the last date on which notice given last April can take effect. Consequently, any attempts to impose compulsory retirement after this date and based on the state retirement age will be ineffective as well as being potentially discriminatory and constituting unfair dismissal.
However, Kath also highlighted possible alternatives to statutory retirement and one of these is an employer justified retirement age. Clarification in this respect has been provided by the European Court in the case of Prigge -v- Lufthansa.
The German Federal Labour Court asked the European Court to consider whether a collectively agreed term in an employment contract, which provided for an employment age limit of 60 for pilots on the grounds of air traffic safety, was compatible with the EU Equal Treatment Directive. Under German law it is unlawful for commercial pilots to work beyond the age of 65 (on the ground of public safety) and pilots aged 60 to 64 must be accompanied by a fellow pilot when flying. Accordingly, the collective agreement went beyond what was required by German law. As a result it was disproportionate and consequently unlawful.
Nonetheless, the Opinion of the Advocate General includes the important qualification could still be permitted if it for a legitimate objective and is both necessary and proportionate in order to achieve that aim.
So what is “necessary and proportionate”. As so often in the field of employment law, this will have to be considered on a case by case basis, thereby introducing considerable uncertainty for employers. So, taking this case as an example, compulsory retirement at 65 would be considered necessary and proportionate whereas compulsory retirement at 60 would not.
The case appears to reinforce the widely expressed view that employers who wish to impose a retirement age on their employees will have to proceed with considerable caution. Many more cases on concerning this topic will undoubtedly follow