• Retirement at 67 Justified

Torsten Hornfeldt v Posten Meddelande AB  Case C-141/11

The Court of Justice of the European Union held that Swedish law could allow for the retirement of employees at the age of 67 without taking into account the level of retirement pension available to the person at that age.  Under Swedish law every employee enjoys an unconditional right to work until the last day of the month of his or her 67th birthday on which date the employment contract can be terminated.

Mr Hornfeldt worked for the Postal Services Agency and when he retired he had an inadequate pension.  He maintained that if he had been allowed to work for up to 3 years longer his retirement pension would have been significantly increased and therefore an exception to the 67 year rule ought to be allowed for people like him who wanted to work longer.

He was unsuccessful.  It was not a mandatory scheme.  The Equal Treatment Directive did not prevent an employer from terminating an employee’s employment on the sole ground that he had reached 67 without taking into account retirement pension always subject to the proviso that the retirement age must be justifiable.  The court found that the Swedish approach did not appear unreasonable and was therefore justifiable.

Key point: The argument of intergenerational fairness of making room for younger workers was put before the Court and accepted.  It is a powerful one and will continue to feature in English age discrimination claims.

  • Length of service within group company  

Tyrolean Airways Tiroler Luftfahrt GmbH v Betriebsrat Bord  Case C-132/11

This case concerned flight crews of two wholly owned subsidiary airlines of Austrian Airlines.  A collective agreement of one of the airlines allowed crews to advance from one category to another 3 years after recruitment.  Service with any other airline was not to be taken into account.  An appeal court took the view that this provision in the collective agreement was age discriminatory.  The ECJ did not agree.  The length of service criterion was neither inextricably nor indirectly linked to the age of the employee at recruitment.  The inclusion of the clause was not therefore precluded by the Equal Treatment Directive.

Key point:  The requirement of specific professional experience with one employer is not age discriminatory even if substantively identical experience with another employer in the same group is excluded.