Since the abolition of the default retirement age of 65 from April 2011, employees can only be required to retire on the grounds of age where it can be objectively justified. The ECJ has held that a compulsory retirement age of 60 for Lufthansa airline pilots constituted unlawful age discrimination – the judgment contains some interesting insight into the ECJ’s approach to the issue of justification.
The Equal Treatment Framework Directive (2000/78/EC) provides a number of circumstances in which age discrimination could be justified but found that the Lufthansa requirement did not satisfy any of the criteria. In summary:
- It was not necessary for the protection of public security or health within the meaning of Article 2(5) of the Directive. This was on the basis that international legislation permits pilots aged up to 65 to fly commercial aeroplanes;
- Nor was it a genuine occupational requirement under Article 4(1), again, on the basis that international law allows commercial pilots to continue to age 65; and
- It could not objectively justified under Article 6(1) which contains a non-exhaustive list of possible justifications for direct age discrimination including employment policy, labour market and vocational training objectives. The ECJ decided that air safety does not constitute a legitimate aim for this purpose.
The full judgment in Prigge and others v Deutsche Lufthansa can be found here