Compulsory Retirement and Age Discrimination: A New Deference to Derogation?
| Published date | 01 March 2008 |
| DOI | 10.1177/135822910800900304 |
| Author | Michael Connolly |
| Date | 01 March 2008 |
International Journal
of
Discrimination and the Law,
2008,
Vol.
9,
pp. 181-198
1358-2291/2008
$10
©
2008
A B Academic Publishers. Printed
in
Great Britain
COMPULSORY
RETIREMENT
AND
AGE
DISCRIMINATION:
A
NEW
DEFERENCE
TO
DEROGATION?
Palacios
de
Ia
Villa
v.
Cortefiel Servicios
SA
Case C-411/05,
Judgment
16th
October
2007
MICHAEL CONNOLLY
University
of
Surrey, UK
ABSTRACT
This article examines a recent decision
of
the ECJ on state derogation from the age
discrimination principle contained in the Employment Equality ('Framework')
Directive 2000/78/EC. The case, Palacios
de
Ia
Villa
v.
Cortefiel Servicios
SA,
originating from Spain, involved a challenge to legislation permitting for com-
pulsory retirement in collective agreements.
It
also examines a similar British
challenge, due in the ECJ sometime in 2009, and comparative case law from the
United States, where federal age discrimination law has been in place since
1967.
It
concludes that the decision in Palacios de
Ia
Villa, rejecting the challenge: (1)
departed from established ECJ jurisprudence and signalled a new deference to
derogation in the field
of
age discrimination;
(2)
is
out
of
line with
US
law; and
(3)
in any case should not threaten the British challenge. However, it also con-
cludes that lawmakers in Europe and the US generally consider age discrimination
to be a lesser wrong than discrimination on other grounds.
INTRODUCTION
The
Employment
Equality
('Framework')
Directive 2000/78/EC
imposed
an
obligation
on
member
states
to
outlaw
employment
discrimination
on
the
ground
of
age (as well as sexual
orientation,
religion
or
belief,
and
disability).
In
the
UK,
the
age
strand
was
implemented
by
the
Employment
Equality
(Age Discrimination)
Regulations 20061 (the
'Age
Regulations').
Workers
with
perhaps
the
highest
expectation
of
the
regulations were
those
wishing
to
work
beyond
their
customary
retirement
age. However, this expecta-
tion
was
dashed
by
the inclusion
of
a
major
exemption
that
permits
employers
to
retire
workers
in
much
the
same
way
that
they
could
before
the
regulations came
into
force.
Regulation
30 provides a
default
retirement
age
for
those
aged
65
2
or
over.
3
It
permits
182
employers
to
dismiss workers who have reached 65, so long as they
follow a complex procedure (set
out
in schedule 6),
but
no
reason
other
than
retirement need be given. Should employers agree
to
keep
on
a
worker
beyond 65, the general principle against age discri-
mination will apply, save for retirement.
For
instance, discriminatory
discipline, pay, harassment,
and
job
classification against those
working beyond their retirement age would remain unlawful.
An
interest
group
for older workers is challenging this exemp-
tion as being incompatible with the
parent
Directive. This has
become
known
as the Heyday challenge, after
an
interest
group
involved in the case,4
although
its formal title is R (on the application
of
the Incorporated Trustees
of
the National Council
for
Ageing (Age
Concern England))
v.
Secretary
of
State
for
Business, Enterprise
and
Regulatory Reform.5 A hearing is due in the
ECJ
sometime in 2009.
The
challenge appears
to
have suffered a setback by the recent judg-
ment
of
the
ECJ
in
another
age discrimination case, Palacios de
Ia
Villa
v.
Cortefiel Servicios
SA
(2007).6 This was a challenge
to
a
Spanish exemption from the age discrimination principle permitting
compulsory retirement ages
to
be negotiated in collective agree-
ments.
The
ECJ
dismissed the challenge
and
held
that
the Spanish
measure was compatible with the Directive.
This
note
examines
that
decision, focusing
on
the whether the
exemption was objectively justified, compares it with long-standing
United
States jurisprudence,
and
concludes
that
the decision
departed
from established
ECJ
jurisprudence, is
out
of
line with
US
law,
and
in
any
case should
not
threaten the Heyday challenge.
However,
it
also shows
how
the law generally considers age
discrimination as a lesser wrong
than
discrimination
on
other
grounds.
THE
LEGISLATION
The
EU
and
domestic legislation relevant
to
Palacios
de
Ia
Villa is as
follows. Article 2(1)
of
the
Framework
Directive provides
that
in
the
field
of
employment the ' "principle
of
equal
treatment"
shall
mean
that
there shall be
no
direct
or
indirect discrimination whatsoever'
on
grounds
of
religion
or
belief, disability, sexual orientation,
and
age.
The
definitions
of
discrimination follow the models developed
by
the
ECJ
and
used in the
Equal
Treatment
(sex)
and
Race
Directives.
7 Thus, the Directive carries
standard
definitions
of
direct
and
indirect discrimination. Article 4(1) provides the
now
standard
exception for 'genuine
and
determining occupational
requirements'. This allows employers
to
discriminate directly when
a particular age is necessary for the
job
in
question.
In
addition,
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