Is compulsory retirement still lawful? Mais oui, says the French Supreme Court, but only if it is objectively justified.

There have been a number of cases in which the French Courts have recently been asked to consider whether an employer’s decision to retire an employee constitutes unlawful age discrimination. Two of the most high-profile decisions involved Government-owned (or previously Government-owned) organisations which had previously been allowed under special retirement plans to require retirement at the minimum retirement age, 55.  

In a ruling involving SNCF, the railway operator, the French Supreme Court said that the statutory provisions entitling SNCF to retire a particular class of employee compulsorily at 55 were not in themselves discriminatory, but that SNCF was still required to objectively justify its decision to retire a particular employee. It referred to Article L.1133 of the Labour Code which states that: “the difference in treatment based on age does not discriminate when justified by a legitimate aim, including a goal of employment policy”. The Court said that the reasons put forward by SNCF, which included enabling the company to adapt its workforce to the changing context in which it operated and to give it greater flexibility, were generic, vague and unconvincing. They did not therefore justify its decision to compulsorily retire the particular employee. The dismissal was therefore discriminatory and so void.  

The Court also reached a similar conclusion in a case involving EDF, the electricity supplier.  

Even though these cases involved “special status” employees, they still give us an idea of how the French Courts are likely to deal with retirement dismissals, including those by private sector employers. They highlight the risks for all employers if they compulsorily retire employees and make it clear that employers should be in a position to produce evidence to support their decisions in relation to each individual retirement. It will not be sufficient to rely on generalised assumptions. The practical difficulties of obtaining such evidence on an individual-by-individual basis are obvious.