Earlier this month the European Court of Justice gave another ruling on the vexed question of whether forced retirement is compatible with the Employment Framework Directive. The answer is a qualified yes, but this needs to be looked at in the light of the complex web of German legislation the ECJ were considering.
This time the Court’s main focus was on a provision in a collective agreement, permitted by the German equivalent of our Equality Act, which provided for automatic termination of employment once the employee was eligible for a retirement pension. That made it different from the Heyday case last year, where a national exemption from the age discrimination legislation was being considered. Another difference was that, unlike in the UK, there is apparently nothing to prevent German employees who are compulsorily retired under one of these collective agreements from going back into the labour market at the age of 65.
The difficult question is how far this decision would support individual employers in the UK seeking to justify retaining a compulsory retirement age if and when the default retirement exemption is removed, which at present permits compulsory retirement ages from 65 upwards. The Court ruled that workforce planning and facilitating the employment of younger workers are both legitimate aims, but then we knew that already from earlier cases. It goes further in spelling out why the means chosen in this case were appropriate and necessary to achieve them. But here the reasoning appears dependent on the assumption that workers who want to stay in the labour market still have protection from age discrimination as they search for a new job. That is not currently the case in the UK, though the position may change once the default retirement age is removed.