The default retirement age in the UK was abolished on 6 April 2011. Since then, some employers have set their own fixed retirement age. However, in order to implement a fixed retirement age, and avoid successful claims of direct age discrimination, employers must be able to show that the limit is objectively justified. The limit must be intended to meet a legitimate aim and having that retirement age must be a proportionate means of achieving that aim. Another way to defend an age discrimination claim might be to rely on the occupational requirement defence under the Equality Act 2010.
In the historic UK case of Seldon v. Clarkson Wright & Jakes, an employment tribunal decided that a law firm's compulsory retirement of a partner at the age of 65 was objectively justified. The tribunal highlighted the requirements for justifying an age restriction on partners at a law firm. The tribunal looked at various factors in coming to its decision, including the firm's aims of retention and workforce planning, the partners' consent to the retirement age when signing the partnership deed, collegiality, the state pension age at the time and case law coming from the European Court of Justice which upheld a mandatory retirement age of 65 in respect of a variety of aims.
In the recent German case of Fries v. Lufthansa CityLine GmbH C-190/16, the Advocate General gave an opinion on the latest challenge to the imposition of an age limit in employment. This dealt with the age restrictions imposed on commercial airline pilots and reaffirmed the requirements courts will look to in order to justify direct age discrimination.
The Advocate General's opinion in this case was considered in light of the EU Regulation on Civil Aviation Aircrew (the Regulations). The Regulations provide that when a pilot reaches the age of 65 he or she can no longer undertake "commercial air transport" by flying commercial aircraft. Furthermore, a pilot between the ages of 60 and 65 is only permitted to pilot a commercial aircraft where he or she is part of a multi-pilot group in which all other pilots are below the age of 60. The Advocate General considered whether the Regulations were compatible with reference to the EU Charter of Fundamental Rights (EU Charter), which states that:
- under article 15, everyone has the right to engage in work and pursue a freely chosen occupation; and
- under article 21, any discrimination on the grounds of age (amongst other things) shall be prohibited.
Mr Fries was a pilot for Lufthansa in Germany. His employment was subject to a collective agreement which provided that his employment would terminate two months after his 65th birthday, when he reached the retirement age provided for in the pension scheme. However, on turning 65, Mr Fries was dismissed. Lufthansa relied on the Regulations to explain his dismissal. Mr Fries countered Lufthansa's position by arguing that he could have continued with his employment, restricting his duties to training other pilots, acting as an examiner and flying non-commercial flights (without passengers, cargo or mail) (the Alternative Duties). Mr Fries contended that this would have been excluded from the ambit of the duties that the age restrictions were intended to protect. As a result, Mr Fries pursued a claim in relation to the pay he would have received had Lufthansa continued to employ him for a further two months (in accordance with the collective agreement).
It was mutually agreed that Mr Fries could not rely on the EU Equal Treatment Directive (2000/78) (the Directive) to pursue his case as this essentially amounted to a judicial review of the Regulations. The case was referred to the European Court of Justice to clarify the position with regard to the interaction between this secondary and primary legislation. The European Court of Justice was asked to determine two main points:
- whether the Regulations were compatible with articles 15 and 21 of the EU Charter; and
- whether the Alternative Duties were included in the definition of "commercial air transport" under the Regulations.
The Advocate General's opinion
The Advocate General determined, in favour of Lufthansa, that the restriction on pilots to cease flying commercial aircraft is a valid limitation and does not circumvent the requirements under articles 15 and 21 of the EU Charter. In particular, the Advocate General reflected on the provisions relating to genuine occupational requirements within the Directive. Despite the fact that Mr Fries could not rely on the Directive here, the Advocate General accepted that the concept of genuine occupational requirements within the Directive can be applied to article 21 of the EU Charter. As a result, he acknowledged that physical capabilities that diminish with age are clearly a characteristic that relates to age and has the potential to fall within a genuine occupational requirement in the context of the safety-critical environment pilots operate in. Therefore, it was considered that the concept of this restriction as a genuine occupational requirement might suffice in justifying the decision to dismiss Mr Fries on the grounds of his age.
Furthermore, the Advocate General accepted that Lufthansa's objective of maintaining air traffic safety was the legitimate aim being pursued here. He also determined that imposing the age limit of 65 was an appropriate measure in the circumstances taking into account the high risk involved with commercial flights as opposed to flying other categories of aircraft. In addition, Lufthansa's age limit was aligned with international civil aviation standards. It was not necessary to undertake individual assessments of employees' physical capabilities as long as the rules on age limits could be properly applied and objectively justified in the majority of circumstances. Using age as the only criterion reflected a legitimate regulatory choice here.
Notwithstanding this analysis, the Advocate General opined that Mr Fries should have been permitted to continue in his employment for a further two months, carrying out the Alternative Duties and giving up his role of flying commercial aircraft. It was not accepted that the definition of "commercial air transport" could extend to circumstances where an employee was not physically flying commercial aircraft, but only carrying out the Alternative Duties.
This case highlights that the EU Charter has force in employment law and shows how the notion of a genuine occupational requirement in the Directive can be used to assist in clarifying the EU Charter's principle of non-discrimination. It also helps to show how claimants can call upon the EU Charter when they are unable to rely on the direct effect of secondary legislation or provisions of national law. In the context of UK employment law, employers should use this case to remind themselves of the factors courts will look to in order to clarify whether direct age discrimination can be justified, both within the scope of national legislation and in light of European law.