Reflections on the Heyday Challenge
By Chris Ball - 06/10/2008
The USA has had Federal legislation since 1967 banning discrimination in hiring or firing the over 40s, but the European Directive and the UK’s Age Discrimination Regulations encompass most work related issues. They ban age discrimination against anyone - younger people as well as older - and cover conditions of employment, access to vocational training and promotion as well as engagement and dismissal.
So what then is the problem with them? Quite simply, they contain some gigantic loop holes. The main one is that they allow age discrimination beyond the age of 65. Employers can discriminate in the most fundamental way by “retiring” employees over the age of 65.
The Regulations require employers to give their employees not less than six months’ notice of impending retirement. The employee then has the right to request to remain beyond the age of retirement but the employer has no duty to accede. Requests must be considered. But then there is no obligation to even give reasons for refusal.
These inadequacies were highlighted by the charity Age Concern England via its small off-shoot organisation, Heyday, and “Heyday” has become effectively the “brand name” for a formal legal challenge to the UK’s transposition brought by Age Concern. The case came before the English High Court in 2007 and in July of that year was sent to the European Court of Justice (ECJ) for preliminary interpretation of several aspects of the Directive. The High Court asked whether the Directive precludes national legislation transposing the Directive, from allowing forced retirement of over 65 year olds. The principle is the issue the court must decide.
Enter the Advocate General a former Chief Justice of Slovakia’s Constitutional Court named Jan Masak. Masak said was that it is possible for a country to include in its domestic legislation, rules permitting employers to dismiss employees over the age of 65 on grounds of retirement, providing they are “objectively and reasonably justified in the context of a national law by a legitimate aim relating to employment policy and the labour market and it is not apparent that the means put in place to achieve that aim of public interest are inappropriate and unnecessary for the purpose.”
What to make of this hesitant and qualified acquiescence? It is not what age equality campaigners had hoped for, but neither is it the final nail in the coffin of the legal process. There is everything to play for in unravelling the tangle of ifs, buts and qualified provisos. Rules must be “objectively and reasonably justified,” have a “legitimate aim relating to employment policy and the labour market,” and the means must be “of pubic interest,” and not inappropriate or unnecessary for the purpose.”
It must of course be remembered that the good Advocate opines; he does not decide. That will be for the European Court itself in some six months’ time. If the court agrees on the principle, it will pass the case back to the English High Court for the issue to be decided on the facts of the case. It is not inconceivable that the case could come back to the ECJ at some point when the arguments start to relate principles to the “nitty-gritty” facts of the matter. There is plenty of mileage in this one yet.
Certainly, it will be interesting to see by what possible rationale the UK - committed to extending working lives and raising the state pension age to 68 by 2046 - is able to justify mandatory retirement of workers presently at the age of 65. Even the fittest and most enthusiastic of senior workers can be obliged to retire simply because their employer says so.
What an absurd contradiction it all seems! A European Directive including provisions to outlaw age discrimination at work leads to Regulations, allowing employers to fire employees at 65 or over. What does “age discrimination” consist of if not being fired on account of one’s age? As Humpty Dumpty said to Alice in Wonderland, “When I use a word it means precisely what I want it to mean!”
As things stand, member states of the European Union can have a national retirement age if this assists with employment policy. Individual employers can have age discriminatory schemes (for example, age-related benefits) provided they are justifiable by reference to their business needs. In the end, hard evidence on justification could be the key determinant in all these cases and one anticipates some hard fought battles over sensible and outrageous distinctions alike.
As one company employment lawyer put it, commenting on the Advocate General’s opinion, “This is a result that is at the further end of the possible outcomes and most in favour of the UK government's interpretation of the European Directive…. Employers and the government will probably breathe a sigh of relief.”
More measured opinion, including some close to Whitehall, may have hoped the European Court would deliver a surprise “get out of jail free” card. No such luck on this occasion. The law it seems, must take its long, interminable course.
Chris Ball is CEO of TAEN – The Age and Employment Network, based in the UK