The European Court of Justice has decided that the compulsory retirement of German pilots at the age of 60 infringed the Employment Framework Directive. The retirement age was in fact not fixed directly by the German government, but by a collective agreement. The trouble was that the retirement age chosen did not correspond with national civil aviation regulations, or the relevant international legislation. Both of these allowed pilots between the age of 60 and 65 to continue to fly providing that they did so as part of a crew with at least one other pilot below the age of 60.
Unsurprisingly the ECJ concluded that it was not proportionate to provide an absolute cut-off at the age of 60 for pilots with the national airline, Deutsche Lufthansa, when it was possible for pilots of other airlines to continue to work, subject to restrictions, until they were 65. More broadly, the case illustrates that industry-wide standards and best practice may well be relevant when assessing the legality of a compulsory retirement age in a particular workplace.
There is however one element of this decision that is more surprising. The ECJ ruled that air traffic safety does not amount to a legitimate aim when justifying age discrimination, because it is not a social policy objective. Its reasoning on this point is sparse, because it is not essential to its overall conclusions, which were primarily based on proportionality. It rests on the assumption that safety considerations are not akin to the examples of legitimate aims listed in the Directive: employment policy, the labour market, or vocational training objectives. That suggests a stricter reading of the Directive on this point than has been adopted by our domestic courts, which will be a worry for employers wishing to use a broad range of aims to justify age discrimination.