Dissertation LLM

LLM in Employment Law Dissertation K1210641

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KINGSTON UNIVERSITY

Despite the established principle of non-discrimination, and the growing

fiscal pressures of changing demographics across the EU, many older

workers still face compulsory retirement, a manifest form of age-based

discrimination.

Is there now an opportunity for the European courts to adopt a more

robust approach in determining the legitimate aims for direct age

discrimination provided for in Article 6(1) of the Council Directive

2000/78EC, enhancing the ‘suspect’ nature of ‘age’ and leading to a more

fundamental rights-based approach?

School: Kingston Law School

Course: Employment Law

Supervisor: Professor Gwyneth Pitt

Author: K1210641

Word count: 14,926


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Abstract

This paper will consider the justification of direct age discrimination, particularly as it

affects the older worker. It will examine the emergence of ‘age’ as a component of

discrimination law, and discuss its status as one of the ‘protected grounds’. It will

analyse the Court of Justice of the European Union’s broad acceptance of the

‘legitimate aims’ of the Members States’ measures, which provide for differences of

treatment on the grounds of age.

This paper will discuss the growing recognition of the ‘suspect’ nature of age, it will

evaluate the validity of discriminatory measures that have been recognised as

‘legitimate aims’, and explore the demographic change that is sweeping across

Europe.

This work will contend that it is now time for a new rationale, with the development of a

more robust approach to the ‘objectivity test’ and greater scrutiny of legitimacy.

It will establish that there is an opportunity for the Court to adopt a more restrictive

interpretation of Article 6(1) and thereby act as a catalyst for the removal of age-based

discrimination in the workforce across the EU, and the advancement of a more

fundamental rights based approach.


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Acknowledgements

I am extremely grateful to my supervisor Professor Gwyneth Pitt, who gave me

guidance, advice and assurance throughout the research and writing of this paper.

I would also like to thank my family for their continued support.


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Table of Contents

Abstract……………………………………………………........................................ 2

Acknowledgment……………………………………………………………………… 3

Table of Contents…………………………………………………………………….. 4

Introduction…………………………………………………………………………… 6

Chapter One

(i) The concept of ‘age’ in the context of discrimination……………….. 9

(ii) Mangold………………………………………………………………….. 15

(iii) Conclusion……………………………………………………………….. 18

Chapter Two

(i) The reaction to Mangold……………………………………………….. 19

(ii) Muted support…………………………………………………………… 20

(iii) A difference of ‘Opinion’………………………………………………… 23

(iv) The ‘Heyday’ challenge………………………………………………… 25

(v) Restating Mangold…………………………………………………….... 29

(vi) Conclusion………………………………………………………………. 33

Chapter Three

(i) The road to Seldon……………………………………………………… 34

(ii) Seldon……………………………………………………………………. 40

(iii) Evaluating intergenerational fairness………………………………… 44

(iv) Interpreting ‘dignity’…………………………………………………….. 50

(v) Conclusion……………………………………………………………….. 55

Chapter Four

(i) Changing Demographics………………………………………………. 56

(ii) Conclusion……………………………………………………………….. 59

Conclusion……………………………………………………………………………. 61


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Bibliography………………………………………………………………………….. 67


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Introduction

EU law first addressed age discrimination through Council Directive 2000/78/EC1

(hereafter referred to as ‘the Directive’), which established a general framework for

equal treatment within the workplace, and is now implemented in the UK through the

Equality Act 2010.2 Article 6(1) of the Directive permits the justification of direct age

discrimination by Member States provided the differences of treatment are ‘within the

context of national law’ and ‘objectively and reasonably justified by a legal aim’. In this

respect age is unique amongst the nine protected grounds, and age-based direct

discrimination measures have been engaged by Member States, most noticeably

through compulsory retirement policies, much to the detriment of the older worker.

The purpose of this paper is to evaluate the status of age, the implications of

judgments at the Court of Justice3 (hereafter referred to as ‘the Court’) and the UK,

and advance the possibility of an enlightened Court taking a more robust approach to

the age–based discriminatory measures of Member States.

It will contend that in exercising a more restrictive, evidence-based assessment when

determining the objective justification of legitimate aims the Court can provide a

stepping-stone to restrict occurrences of age discrimination in the workplace.

It is hoped that in creating a buttress to discriminatory rules such as compulsory

retirement, the Court will be embracing the notion of increased labor market

participation by older people that will help EU Member States meet the challenge of

demographic change. This can be achieved by the removal of mandatory retirement

rules, a greater recognition of the rights of older workers, and the enhancement of the

status of age as a protected characteristic.

1 The Council Directive (EC) 2000/78 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303 2 Equality Act 2010 3 Court of Justice of the European Union previously referred to as the European Court of Justice


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This paper will discuss the ‘suspect’ nature of age and examine the impact of the

controversial case of Mangold v Helm4 which promoted the status of age and

determined that non-discrimination of grounds of age should be ‘regarded as a general

principle of Community law’ and conflicting national law should disapplied.

It will analyse the varied reaction to Mangold in the subsequent key cases, and the

Courts’ decisions that have given its provisional support. It will also evaluate the

continued development of case law in respect of compulsory retirement measures and

in particular the ‘objectivity test’ for the justification of legitimate aims. It will explore the

foremost cases leading up to the important findings of Lady Hale in Seldon v Clarkson

Wright and Jakes.5

This paper will evaluate intergenerational fairness and dignity as identified by Lady

Hale in Seldon and argue that it will no longer be appropriate to justify retirement

measures under these headings in the UK, and become increasingly difficult for the

rest of the EU. It will examine the nature of the changing demographics of Europe and

assert that a new socio-economic strategy needs to be adopted by the Member States

to tackle the financial strain of an increasingly ageing population in tandem with the

decreasing size of the workforce.

The re-focus from compulsory retirement policies to promoting full-labour participation

can be achieved by a more robust examination of the objective justification of

‘legitimate aims’. This can be accomplished by taking a more evidence-based

approach to the ‘objective and necessary’ test and a greater recognition by the

national authorities towards strategies for maintaining older workers as part of a

diverse workforce6, and affirming their right to engage in work.7

4 Case-C-144/04 Werner Mangold v Rudiger Helm [2005] ECR I-9981 5 Seldon v Clarkson Wright and Jakes [2012] UKSC 16 IRLR 590 6 European Commission, Europe 2020 7 Article 15(1) of the Charter of Fundamental Rights of the European Union


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The thesis will conclude that the Court has an opportunity to encourage the removal of

discriminatory age-based retirement rules, and determine a more rights based

approach to discrimination legislation within the workplace.

This paper will consider the position of age in the context of discrimination law, and

for this purpose the methodology adopted in this thesis is principally a legal-doctrinal

approach, involving close analysis of relevant case law, interpreting judgments and

clarifying any ambiguities.

The core of this paper conducts a normative evaluation, however it does include an

element of empirical research particularly in the chapter on demographic change.


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Chapter One

(i) The concept of ‘age’ in the context of discrimination

The concept of age discrimination is relatively new. Age was omitted from the list of

‘suspect’ categories in the historic Universal Declaration of Human Rights (UDHR)8 of

1948 and was relegated to ‘or other status’ in Article 14 of The European Convention

on Human Rights (ECHR).9 It was fifty years later that Article 13 of the Treaty of

Amsterdam10 empowered the Community to combat discrimination based on sex, race

or ethnic origin, religion or belief, disability, age or sexual orientation, and was

subsequently adopted into Council Directive 2000/78/EC, establishing a general

framework for equal treatment in employment and occupation. The Directive gave

expression ‘to a fundamental norm of the EU legal order, namely the general principle

of equal treatment’,11 it was a significant step firmly putting age into the arena of anti-

discrimination legislation, and was duly welcomed by many observers. Meenan

acclaimed this as the seizing of an opportunity, and considered that ‘the inclusion of

age in Article 13 and the Employment Directive may come to be regarded as

prescient, rational and absolutely of the right time.’12

Optimism was also greeted with caution; Fredman noted the limitations of the

provisions and concluded: ‘In particular, the method of categorisation of groups and

the definitions of discrimination remain problematic.’13 Whilst Article 2 of the Directive

classifies age as a fully protected ground of non-discrimination, crucially Article 6(1)

states that ‘differences of treatment on grounds of age shall not constitute

8 The Universal Declaration of Human Rights was adopted by the United Nations General Council on 10 December 1948. 9 The European Convention on Human Rights (ECHR) was drafted in 1950 and came into force in 1953. 10 The Treat of Amsterdam amending the Treaty on European Union and the Treaty establishing the European Community [1999] OJ C340/01 came into force in 1999. 11 Colm O’Cinneide, The Evolution and Impact of the Case-Law of the Court of Justice of the European Union on Directives 2000/43/EC and 2000/78/EC (Luxembourg: Office for Official Publications of the EU 2012) 5 12 Helen Meenan, ‘Age Discrimination in the EU and the Framework Directive’ in Malcolm Sargeant (ed), The Law on Age Discrimination in the EU (Kluwer Law International 2008) 10 13 Sandra Fredman, ‘Equality: A New Generation?’ (2001) 30 ILJ 145, 168


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discrimination, if, within the context of national law, they are objectively and reasonably

justified by a legitimate aim, including legitimate employment policy, labour market and

vocational training objectives, and if the means of achieving that aim are appropriate

and necessary.’ As Skidmore noted on this pivotal inclusion: ‘This broad approach

allows for continued direct discrimination on the grounds of age, subject to social

policy justifications’14 which permit the Member States to derogate from the equality

norm.

It is therefore arguable that age has not been fully recognised as a human rights issue,

with the inclusion of Article 6(1) ‘a tacit acknowledgment of the difficulties of achieving

agreement between the Member States when affording age the same recognition they

accorded to race and sex.’15 Meenan considered that this was perhaps the ‘cost’ of

including age in the Framework Directive16, and conceded it ‘has suffered in its quest

for recognition as an equality issue’.17 She believed this was due to a number of

factors, including the acceptance of age limits and traditional cut-offs used a rational

organisational tool in the field of employment; stereotypical assumptions regarding

performance, commitment and ability; and the perception that ‘age discrimination is

regarded in some quarters as less wrong than other forms of discrimination.’18

It is the contested nature of age that is at the heart of the conflict between individual

rights and economic objectives. As O’Cinneide observed: ‘In the eyes of some

commentators, age discrimination constitutes an intrinsically less serious form of

discrimination than other types of unequal treatment’ and the use of age to

14 Paul Skidmore, ‘EC Framework Directive on Equal Treatment in Employment: Towards a Comprehensive Community Anti-Discrimination Policy?’ (2001) 20 ILJ 126, 130 15 ibid 129 16 Helen Meenan, ‘Age Equality after Employment Directive’ (2003) 10 MJECL 9, 23 17 Helen Meenan, ‘Reflecting on Age Discrimination in 2007 – the Search for Clarity and Food for Thought…’ (2007) ERA 2 <http://www.era-comm.eu/oldoku/Adiskri/08_Age/2007-Meenan-EN.pdf> accessed 14 March 2014 18 ibid 3


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differentiate between employees is commonplace and can often be considered

rational.19

Age discrimination is not associated with historical oppression, and in the well-

documented case of Massachusetts Board of Retirement v Murgia20 the US Supreme

Court asserted that older people had not experienced ‘a history of purposeful unequal

treatment’ and therefore did not warrant a form of corrective justice. The US Supreme

Court thus determined age as ‘non-suspect’21, and stated that ‘old age does not define

a “discrete and insular” group…in need of “extraordinary protection”… instead it was a

stage that each of us will reach if we live out our normal span.’22 It is clearly

established that age has a ‘temporal dimension, a one-way, progressive and

irreversible nature’23 and it has been argued that over the long term it all ‘evens out’. It

is this ‘dynamic nature’24 that is often cited as a central reason that age discrimination

is substantially different, and maintains an informal lower status than race or sex

discrimination.

The distinction between ‘suspect’ and ‘non-suspect’ grounds has led to ‘a

differentiation of rigour in the application of the prohibitions in general, and in the case

of age in particular’.25 The existence of a hierarchy is not disputed (although opinions

may be divided about the ‘rankings’) and it is widely accepted that the narrow scope of

the Directive has enhanced ‘a hierarchy of directives, with race and ethnic origin given

the widest reach, followed by gender discrimination, which covers employment and

social security, and trailed by the discrimination on grounds of age, religion, sexual

19 Colm O’Cinneide, ‘Age Discrimination and the European Court of Justice: EU Equality Law Comes of Age’ (2009-10) 2 Revue des Affaires Européennes 253, 257 20 Massachusetts Board of Retirement v Murgia 427 US 307 (1976) 21 ibid at (a) 22 ibid at I 23 Csilla Kollonay-Lehoczky, ‘Who, Whom, When, How? Questions and Emerging Answers on Age Discrimination’ (2013) 11 The Equal Rights Review 69, 70 24 ibid 25 ibid 72


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orientation and disability’ [emphasis added].26 The possibility that this leaves age at

the bottom of the pile is affirmed by Recital 25 of the Directive, which accepted the role

age plays in a number of social policy contexts, stating ‘differences in treatment in

connection with age may be justified under certain circumstances and therefore

require specific provisions’ and accordingly in Article 6(1) grants Member States the

opportunity to provide legal justification for indirect and also direct age discrimination.

That age maybe subject to an objective ground for dismissal as part of a legitimate

employment policy, ‘has fed the perception that age equality is an economic labour

market issue rather than an equality issue’.27

Many had hoped for the development of ‘an individual, rights-centred approach to age

equality’28 that would recognise ‘the crucial importance of individual human rights’29

and not a minimalist approaches that enables a greater scope for use of age as an

acceptable ground for discrimination.

It is clear that ‘[t]he rationale of prohibiting age discrimination is accordingly contested’,

oscillating between reasons of economic policy and the general theory behind anti-

discrimination law and policy,30and there is concern that the original rationales of non-

discrimination that aim to combat stereotyping and protect against ‘ageism’

(particularly for older people) are ‘in danger of playing second fiddle’31 to economic

motivations. It led a disappointingly ‘minimal’ approach with the issue of the

employment market shaping the Directive and in particular the objective exception

contained within Article 6.

26 Sandra Fredman, ‘Equality: A New Generation?’ (2001) 30 ILJ 145, 151 27 Colm O’Cinneide, ‘Comparative European Perspectives on Age Discrimination Legislation’ in Sandra Fredman and Sarah Spencer (eds), Age as an Equality Issue (Hart Publishing 2003) 199 28 ibid 195 29 ibid 196 30 Dagmar Schiek, ‘Age Discrimination Before The ECJ – Conceptual and Theoretical Issues’ (2011) 48 CMLR 777, 778 31 ibid 779


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It might be contested that Article 6 was a realistic attempt to balance the needs of the

employers with those of employees,32 but as Schiek observed, this ‘contrast between

the ban on age discrimination and the widespread use of age to justify different

treatment in employment and social policy leads to a certain ambiguity of EU age

discrimination law.’33

In 2011 Fredman reflected: ‘The new emphasis on combating age discrimination is

not…a result of a sudden appreciation of the need for fairness, but gains its chief

emphasis from macroeconomic imperatives.’34 As recently as 2013 Sargeant still felt

that a part of the problem ‘is that age does not really seem to have been accepted as a

human rights issue as have other grounds. The justification for having measures

concerning age is essentially an economic one’.35 This paper will explore the

measures that are purported to be ‘legitimate aims’ under the umbrella of ‘employment

policy, labour market and vocational training objectives in the context of social policy

and ultimately question whether these socio/economic motives stand up to scrutiny.

It has been prescribed that the derogation permitting differences in treatment on the

grounds of age by the Member States creates opportunities for exceptions to the

principle of equality and reduces the standing of age within the sphere of employment.

For those who consider that outlawing age-discrimination in the workplace a central

aspect of a fairer and more equal society, the ‘suspect’ nature of age is not doubted,

and importantly it is this status that may provide the barrier against ‘legalised’

discrimination within the workplace.

As Duncan has stated: ‘It need hardly be said that “rational” or “objective”

discrimination is as damaging to the affected employees as that based upon simple 32 Helen Meenan, ‘Age Equality after Employment Directive’ (2003) 10 MJECL 9, 23 33 Dagmar Schiek, ‘Age Discrimination Before The ECJ – Conceptual and Theoretical Issues’ (2011) 48 CMLR 777, 784 34 Sandra Fredman, Discrimination Law (2nd Edn, OUP 2011) 103 35 Malcolm Sargeant, Discrimination and the Law (Routledge 2013) 56


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prejudice’,36 although in the same article he recognised ‘that age equality, both as a

theoretical construct and in policy application, is highly problematic, especially for

confronting the age discrimination that affects older people’.37

This paper will consider the relevant case law subsequent to the Directive, focusing on

the ‘legitimate aims’ that have been introduced by the Member States in order to justify

measures that incorporate direct age discrimination within the workplace.

The central point of this paper is age discrimination as it affects the older worker, the

cases that will be evaluated will primarily concern compulsory retirement legislation

within the EU. It will look at the more recent UK Court decision in Seldon and discuss

the validity of the ‘aims’ as identified by Lady Hale and contend that they are at the

very least problematic.

This may create a potential pathway for a more restrictive approach, which could yet

lead to the greater enhancement of fundamental rights for the older, and indeed all the

employees.

Skidmore declared: ‘In the field of labour law covered by Article 6(1) it is to be hoped

the Court of Justice will be will be tough in assessing the social policy necessity of

measures which discriminate on grounds of age and sex’.38 In the following chapters

this paper will appraise the significant decisions made by the Court in the emerging

and controversial field of case law of age discrimination, and conclude that his

optimism may have been misplaced, but there is still hope for change.

36 Colin Duncan, ‘The dangers and limitations of equality agendas as means for tackling old-age prejudice’ (2008) 28 Ageing and Society 1137 <http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=2345872> accessed 17 March 2014 37 ibid 1134 38 Paul Skidmore, ‘EC Framework Directive on Equal Treatment in Employment: Towards a Comprehensive Community Anti-Discrimination Policy?’ (2001) 20 ILJ 126, 130


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(ii) Mangold

The first case before the Court based on Article 6 of the Directive was Mangold v

Helm39 in 2005. A German law removing restrictions on the duration and number of

fixed-term contracts that could be entered into when an employee was over 52 years

old was challenged as unjustified age discrimination.

This case was of considerable interest on several levels. Firstly, the Court had to

consider whether such an exception to the principle of non-discrimination was justified.

In order to comply with Article 6(1) the measure had to be seen as ‘objectively and

reasonably justified by a legitimate aim’ and that ‘the means of achieving that aim are

appropriate and necessary’.

The German Government argued the purpose of the law was to encourage the

vocational integration of unemployed (older) workers, and the Court held that the

‘legitimacy of such a public-interest objective cannot reasonably be thrown in

doubt’40and that an objective of that kind must therefore, as a rule, be regarded as

‘objectively and reasonably’ justified as provided for by the first subparagraph of Article

6(1) of Directive 2000/78.41

Article 6(1) provided three examples of justifiable differences of treatment on the

grounds of age, this list in non-exhaustive and attempts to provide some clarity,

although the precise meaning of the term ‘legitimate aim’ remains unclear.

Nevertheless the Court has found no difficulty in viewing the purpose of an aim as

legitimate within the context of Article 6(1), and although prima facie this would appear

to be the correct interpretation, some observers understandably felt alarm at the

39 Case C-144/04 Werner Mangold v Rudiger Helm [2005] ECR I-9981 40 ibid, para 60 41 ibid, para 61


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Court’s perceived ‘willingness to allow economic imperative to interfere with the

principle of equal treatment’.42

In considering the next ‘hurdle’ the Court decided that the blanket nature of the

exception for older workers went beyond what is appropriate and necessary in order to

attain the objective pursued.43 In concluding that the measure did not pass the

proportionality test, it made express reference to the gender equality case Lommers,44

‘thereby indicating that the objective justification test will be applied to age in a similar

manner as it is applied to other discrimination grounds’.45 This established the pattern

in subsequent age discrimination cases, whereby the Court generally adopted a broad

acceptance policy in relation to the ‘legitimate goals’, but endorsed a stricter approach

to the ‘proportionate’ test of in deciding if the measure was considered ‘appropriate

and necessary’.

A further and especially important part of the decision in Mangold can be read in the

final paragraphs of the judgment. The Court referred to Article 1 of the Directive and

stated that the sole purpose of the directive is ‘to lay down a general framework for

combating discrimination on the grounds of religion or belief, disability, age or sexual

orientation’46 and the source of this underlying principle of prohibition can be found in

the third and fourth recitals in the preamble to the directive (which are concerned with

gender equality rights; and other international agreements on human rights), as well as

‘the constitutional traditions common to the Member States.’47 It went on to say that

the ‘principle of non-discrimination on grounds of age must thus be regarded as a

42 Susan Bisom-Rapp and Malcolm Sargeant, ‘Diverging Doctrine, Converging Outcomes: Evaluating age Discrimination Law in the United Kingdom and the United State (2013) 44 Loyola University Chicago Law Journal 717, 746 43 Mangold, para 65 44 Case C-476/99 H. Lommers v Minister van Landbouw, Natuurbeheer en Visserij [2002] ECR I-2891 45 Colm O’Cinneide, ‘Age Discrimination and the European Court of Justice: EU Equality Law Comes of Age’ (2009-10) 2 Revue des Affaires Européennes 253, 264 46 Mangold, para 74 47 ibid, para 74


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general principle of Community law’48 and concluded that in order to give full effect to

the principle of ‘non-discrimination in respect of age’ conflicting national law should be

disapplied, even when the directive had not yet become binding to the Member State

concerned.49

This was a very significant, and in many ways, bold ruling. It elevated the status of age

and caused alarm amongst the Member States, many of who had envisaged that

making use of age-based distinctions would be largely unopposed in the Court. There

was also much debate amongst observers, and the pervading view of many was that

the Court had gone too far too soon.

In its decision the Court had sidestepped the issue that the legislation under

consideration arose before the directive came into force in Germany, it recognised that

prohibition of age discrimination was a fundamental aspect of the general equal

treatment principle, and it obligated national courts to set aside conflicting provisions.

Equally important for the purposes of this paper is that it established ‘the status of age-

based distinctions as ‘suspect’ criteria whose use in the context of employment and

occupation must be shown to satisfy the exacting requirements of the standard

objective justification test’.50

As Dewhurst observed: ‘It is really at this stage that the decisions of the Court of

Justice become more interesting, as it is here that the principle of equal treatment on

the grounds of age comes into conflict directly with the economic policies of the

Member States.’51

O’Cinneide noted that, ‘some commentators have argued that the limited scope of

protection offered against age discrimination under the Directive, in particular the 48 ibid, para 75 49 ibid, para78 50 Colm O’Cinneide, ‘Age Discrimination and the European Court of Justice: EU Equality Law Comes of Age’ (2009-10) 2 Revue des Affaires Européennes 253, 265 51 Elaine Dewhurst, ‘The Development of EU Case-Law on Age Discrimination in Employment: ‘Will You Still Need Me? Will You Still Feed Me? When I’m Sixty-Four’’ (2013) 19 ELJ 517, 529


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potential for direct age discrimination to be objectively justified under Article 6(1) and

the lack of protection outside of the field of employment and occupation, means that

age should not be seen as covered by the general principle of equal treatment.’

However Mangold had established that non-discrimination on grounds of age was

aligned to the broader principle of equal treatment and confirmed its ‘suspect’ nature.

Mangold was indeed a seminal, and in many ways a controversial case.

(iii) Conclusion

Age discrimination is a new concept that was formally recognised in the Directive,

however it is clear that the workings of Article 6 have a diluting effect on its status

amongst the protected grounds. This paper will consider the impact of Article 6(1),

and in particular the Court’s assessment of the ‘legitimate aim’ requirement of the

‘objective justification’ test.

Mangold might be considered a courageous attempt by the Court to reinforce the

position of age within the ambit of discrimination law, but it faced considerable criticism

from various commentators and Member States who felt strongly that it had

overstepped its mark.


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Chapter Two (i) The reaction to Mangold

Kilpatrick describes the Court’s decision in Mangold as ‘an unexpected and

controversial leap into the constitutional unknown’. She identifies two key issues; firstly

the Court had ‘uncovered’ a general principle of non-discrimination on the basis of

age, placing it at the heart of its judgment; and secondly the Court, in reasoning that

this new principle was supreme, determined national courts were obliged to disapply

any national law that was in conflict with it.52

The implication of the judgment in Mangold resulted in considerable discussion and

criticism, arguing this decision created an extension beyond the original conception

intended and questioning the formulations upon which the Court had founded this

principle.53 It led to a ‘sustained backlash’ from law academics as well as some

Advocates General54 who maintained that ‘the general principle of equal treatment was

too uncertain a legal concept to be applied in the manner that the Court had done in

Mangold’.55 In the case of Lindorfer56 AG Jacobs suggested in his Opinion that age

should not be considered the equivalent of gender discrimination: ‘In Community law,

prohibition of age discrimination is not only set about with far more numerous provisos

and limitations than is sex discrimination, it is also a much more recent

phenomenon.’57 This view was expressed before the judgment in Mangold, and

Lindorfer was subsequently decided purely on the grounds of sex discrimination.

52 Claire Kilpatrick, ‘The ECJ and Labour Law: A 2008 Retrospective’ (2009) 38 ILJ 180, 186 53 Elaine Dewhurst, ‘The Development of EU Case-Law on Age Discrimination in Employment: ‘Will You Still Need Me? Will You Still Feed Me? When I’m Sixty-Four’’ (2013) 19 ELJ 517, 524 54 Claire Kilpatrick, ‘The Court of Justice and Labour Law in 2010: A New EU Discrimination Law Architecture’ (2011) 40 ILJ 280, 284 55 Colm O’Cinneide, ‘Age Discrimination and the European Court of Justice: EU Equality Law Comes of Age’ (2009-10) 2 Revue des Affaires Européennes 253, 268-269 56 Case C-227/04 P Maria-Luise Lindorfer v Council of the European Union [2007] ECR I-06767 57 Case C-227/04 P Maria-Luise Lindorfer v Council of the European Union [2007] ECR I-06767, Opinion of AG Jacobs, para 87


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The second Opinion in Lindorfer was delivered in the light of Mangold by AG

Sharpston, who reiterated ‘the prohibition of age discrimination should, by both its very

nature and because of its history, be interpreted and applied less rigorously than the

prohibition of sex discrimination’58 but clarified that she was not ‘persuaded that the

judgment in Mangold affects the analysis of the present case in any significant way’.59

In the disability case of Chacon Navas60 AG Geelhoed considered in his Opinion that

Article 13 should not be used ‘as a lever to correct…the decisions made by the

member States in the exercise of powers which they – still – retain.’61 He went on to

point out that that the legislature was required to ‘make painful, if not tragic choices

when weighing up the interests in question, such as the rights of disabled or older

workers versus the flexible operations of the labour market or an increase in the level

of participation of older workers.’62

The conviction of many observers that the Court had exceeded its authority in

Mangold continued to be voiced in a case concerning the compatibility of a compulsory

retirement provision in Spain; Felix Palacios.63

(ii) Muted support

In his Opinion in Palacios AG Mazak made it clear that he felt that the Court had over-

reached itself in Mangold. Agreeing with AG Geelhold’s view in Nachos and

suggesting ‘a rather restrained interpretation’64 he reasoned that ‘prohibition is of a

specific nature in that age as a criterion is a point on a scale and that, therefore age

58 Lindorfer, Opinion of AG Sharpston, para 51 59 ibid, para 51 60 Case C-13/05 Sonia Chacon Navas v Eurest Colectividades SA [2006] ECR I-06467 61 Case C-13/05 Sonia Chacon Navas v Eurest Colectividades SA [2006] ECR I-06467, Opinion of AG Geelhoed, para 54 62 ibid, para 55 63 Case C-411/05 Felix Palacios de la Villa v Cortefiel Servicios SA [2007] I-08531 64 Case C-411/05 Felix Palacios de la Villa v Cortefiel Servicios SA [2007] I-08531, Opinion of AG Mazak, para 58


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discrimination may be graduated.’65 It required ‘complex and subtle assessment’ and

age-related distinctions were already commonplace in social and economic policies.66

As such, he argued age should be distinguished form other forms of discrimination.

He urged for the Directive to be given a cautious interpretation, expressing his concern

by stating somewhat dramatically, that it would otherwise be ‘very problematic to have

this Sword of Damocles hanging over all national provisions laying down retirement

ages’.67 He continued his criticism, commenting that from the inference of the Court in

Mangold ‘[o]ne could say that the general principle of equality potentially implies a

prohibition of discrimination on any ground which may be deemed unacceptable.’68

Despite the urgent nature of the declarations in AG Mazak’s Opinion, the Court largely

avoided the controversial reasoning in Mangold and focussed on simply applying the

Directive. It concluded the compulsory retirement measure was objectively and

reasonably justified by the legitimate aim of ‘seeking to promote better access to

employment, by means of better distribution of work between the generations’.69 Whilst

stating the importance that such measures ‘do not go beyond what is appropriate and

necessary’,70 it concluded that in this context they were not unreasonable.71

In making its decision the Court had noted that the measure in question took account

of pension entitlements, the age of employees and the existence of collective

agreements, and ‘re-affirmed the rigorous nature…set out in the Directive’72 whilst

acknowledging the difficulty associated with the issue of retirement age, and clearly

65 ibid, para 61 66 ibid, para 62 67 ibid, para 64 68 Palacios, para 93 69 ibid, para 53 70 ibid, para 71 71 ibid, para 72 72 Colm O’Cinneide, ‘Age Discrimination and the European Court of Justice: EU Equality Law Comes of Age’ (2009-10) 2 Revue des Affaires Européennes 253, 271


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granted member States a generous margin of discretion in this area of employment

policy.

This margin of discretion did indeed appear to be generous with the implication that

costs alone might be considered ‘legitimate aims’. It was noted that national

authorities could choose these aims ‘on the basis of political, economic, social,

demographic and/or budgetary considerations’.73

Thus the Court in Palacios had rejected the criticism made by AG Mazak that age

should be treated differently, and re-affirmed the substance of the age discrimination

provisions of the Directive as held in Mangold. Importantly it had determined that

employment legislation and the resulting rules on retirement were subject to the age

provisions within the Directive. In reference to recital 14 in the preamble, which states

that: ‘This Directive shall be without prejudice to national provisions laying down

retirement ages’74 the Court determined that the Directive did apply to national

measures ‘governing the conditions for termination of employment contracts’ when the

retirement age had been reached.75

The Court also emphasised that national measures based on age would be required to

meet the standards of the objective justification test, as it was applied in other areas

discrimination law.76

However it choose not to address the link between the principle of equal treatment and

age discrimination, and although it largely restated the message at Mangold it did so at

the expense of an ever expanding rationale for age-based discrimination measures.

This left an opportunity for the Court to have its first head-on encounter with the

constitutional reasoning in Mangold77 in the case of Birgit Bartsch.78

73 Palacios, para 69 74 Recital 14 in the preamble to the Directive 2000/78/EC 75 Palacios, para 44 76 ibid, para 71 77 Claire Kilpatrick, ‘The ECJ and Labour Law: A 2008 Retrospective’ (2009) 38 ILJ 180, 187


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(iii) A difference of ‘Opinion’

In Palacios AG Mazak had made his views clear, and stated that the ‘approach

adopted by the Court in Mangold has received serious criticism from academia, the

media and also from most of the parties to the present proceedings…’79 However it did

it receive some much need support from the Opinion of AG Sharpston in Bartsch.

The case concerned an ‘age-gap’ clause, which provided that the employer would not

make payments to a deceased employees husband/wife if they were more than 15

years younger than their partner. Mrs. Bartsch was 21-years younger than her

deceased husband and claimed this clause violated the principle of equal treatment.

This was a case that occurred before the period of transposition for the Directive had

expired in Germany, therefore it did not apply and the court subsequently did not

analyze it under the Directive.

The issue of ‘Mangold and its progeny’80 was nonetheless, discussed extensively by

AG Sharpston in her Opinion. She held ‘that discrimination on the grounds of age had

always been precluded by the general principle of equality’81 and she considered how

the Court might interpret Mangold in future. AG Sharpston was conscious that in four

previous cases the Court had not reviewed or indeed mentioned the Mangold decision

with respect to the existence of the general principle prohibiting age discrimination82

and accordingly she endeavoured to distinguish it. Without looking ‘to establish a

sharp boundary between a constitutional principle and an employment regulation

based on ordinary law’83 she opined that an emerging consensus now existed that age

78 Case C-427/06 Birgit Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH [2008] I-07245 79 Case C-411/05 Felix Palacios de la Villa v Cortefiel Servicios SA [2007] I-08531, Opinion of AG Mazak, para 83 80 Case C-427/06 Birgit Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH [2008] ECR I-7245, Opinion of AG Sharpston, paras 27-28 81 ibid, para 34 82 ibid, para 37 83 Deborah Mabbett, ‘Age Discrimination in Law and Policy: How the Equal Treatment Directive Affects National Welfare States’ in Malcolm Ross and Yuri Borgmann-Prebil (eds), Promotiing Solidarity in the European Union (OUP, 2010) 204


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discrimination should be unlawful, and the Court had been correct in Mangold to treat

the principle of non-discrimination on the grounds of age as an aspect of the general

principle of equal treatment.84 In support of the recent developments in Mangold she

maintained that it is ‘precisely because the general principle of equality has now been

recognised also to include equality of treatment irrespective of age that an

enabling legislative provision such as Article 13 EC becomes necessary and is duly

used as the basis for detailed legislative intervention.’85

In a short-judgment the Court decided that the death of Mr. Bartsch occurred before

the transposition period had expired and did not fall within the scope of Community

law.86 However it still took the opportunity to reiterate Mangold, as AG Sharpston

affirmed that:

having identified that the general principle of equality includes a prohibition on

age discrimination, the Court first reminded itself of its duty to “provide all the

criteria of interpretation needed by the national court to determine whether

[national] rules are compatible with such a principle” where [those] rules fall

within the scope of Community law.87

The Court had ‘signalled its intent to continue to adhere to the full scope of the

Mangold decision’88 whilst reassuring some critics by confirming its impact was

restricted to issues that fell within the general scope of Community law.

As the case law developed, a certain ambiguity emerged. This emerging contrast of a

ban on age discrimination and the commonplace use of age to justify different

treatment in social and employment policy was discussed by Schiek. She noted that

84 Colm O’Cinneide, The Evolution and Impact of the Case-Law of the Court of Justice of the European Union on Directives 2000/43/EC and 2000/78/EC (Luxembourg: Office for Official Publications of the EU 2012) 19 85 Bartsch, Opinion of AG Sharpston, para 50 86 Bartsch, para 17 87 ibid, para 71 88 Colm O’Cinneide ‘Age Discrimination and the European Court of Justice: EU Equality Law Comes of Age’ (2009-10) 2 Revue des Affaires Européennes 253, 280


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non-discrimination EU law is generally operated on a ‘closed-list’ basis and direct

discrimination can only be based on specific exemptions.89 However the general

principle of equal treatment appears to accord a lower level of protection, requiring that

‘similar situations shall not be treated differently unless different treatment is

objectively justified’,90 with EU law on age discrimination posited between the two. The

difference between these two standards of justification was to be acknowledged by the

Court in Age Concern England,91 a case of particular importance in the UK.

(iv) The ‘Heyday’ Challenge

In the UK the pressure group Age Concern92 (through a subsidiary membership

company called Heyday) challenged the compatibility of the Employment Equality

(Age) Regulations 2006,93 which implemented the Directive into the UK, and permitted

employers to justify direct discrimination in setting a ‘default’ retirement age of 65.

The UK High Court referred three main issues to the Court for consideration: whether

the Directive applied to the default retirement; whether the general justification defence

for direct discrimination (in Regulation 3) was compatible with the Directive; and

whether any practical difference existed between the objective justification tests for

indirect discrimination in Article 2(2)(b)(i) and the defence against age discrimination

as permitted in Article 6(1). The High Court did not invite justification for compulsory

89 Dagmar Schiek, ‘Age Discrimination Before The ECJ – Conceptual and Theoretical Issues’ (2011) 48 CMLR 777, 784 90 Joined Cases 117/76 and 16/77, Ruckdeschel v. Hauptzollamt Hamburg-St. Annen [1977] ECR 1753, para 7 91 Case C-388/07 R (Incorporated Trustees of the National Court on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] ECR I-01569 7 92 Age Concern merged with Help the Aged and on 19 April 2010 became Age UK 93 Employment Equality (Age) Regulations 2006 (SI2006/1031)


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retirement but was ‘in effect asking the Court to clarify the scope of the law but not to

evaluate its substantive application’.94

In his Opinion AG Mazak repeated his earlier views in Palacios, asserting that

‘Age is not by nature a “suspect ground”, at least not so much as for example race or

or sex…age is fluid as a criterion’.95 Referring to Article 6(1) he stated: ‘It is obviously

intended to enable Member States to retain age-based employment practices and to

set or preserve age limits in so far as they are justified by a legitimate employment or

social policy aim.’96 He argued that in relation to Article 6(1) ‘the possibilities under the

directive of justifying differences of treatment based on age are more extensive than

those based on the other grounds mentioned in Article 1 of the directive.’97 and as

such the application of the objective justification test should be exercised in a less

demanding manner than in other contexts. AG Mazak went to conclude that permitting

employers to retire employees aged 65 could in principle, be justified.

The Court held that the Directive did apply to the provisions, regardless of recital 14 of

the preamble, repeating the view stated in Palacios. The UK Government had cited the

workplace management needs of employers as justification, which Age Concern had

contended was not specifically listed in the examples laid out in the text of Article 6(1).

The Court decided that ‘[t]he transposition of a directive into domestic law does not

moreover always require that its provision be incorporated formally in express, specific

legislation.’98 If the basis of the derogation was apparent from a wider legislative

context, it did not require a specific list. It indicated that the social aim of the Member

94 Deborah Mabbett, ‘Age Discrimination in Law and Policy: How the Equal Treatment Directive Affects National Welfare States’ in Malcolm Ross and Yuri Borgmann-Prebil (eds), Promotiing Solidarity in the European Union (OUP, 2010) 205 95 Case C-388/07 R (Incorporated Trustees of the National Court on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] ICR 1080, Opinion of AG Mazak, para 74 96 ibid, para 75 97 ibid, para 76 98 Case C-388/07 R (Incorporated Trustees of the National Court on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] ICR 1080, [42]


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State could be indentified from its general context ‘including by recourse to official

documents’.99

Regarding the ‘legitimate’ aims required to justify direct discrimination, the Court

referred to Article 6(1) of the Directive’s social policy aims and concluded that by ‘their

public interest nature, those legitimate aims are distinguishable from purely individual

reasons particular to the employer’s situation, such as cost reduction or improving

competitiveness, although it cannot be ruled out that a national rule may recognise, in

the pursuit of those legitimate aims, a certain degree of flexibility for employers.’100

This clearly indicated that the intention of the policy should specifically be to purport

the advancement of public interest.

The Court considered the UK legislation could in principle be justified, and referred the

matter to the national court for determination. Unlike Palacios, in this case age was the

sole criteria, and Member States benefited from ‘a broad discretion in matters of social

policy’,101 which caused consternation amongst observers who feared it might ‘herald

less searching scrutiny of national legislation endorsing age discrimination in pursuit of

wider labour market objectives.’102

However, despite this shift in emphasis the Court again manifestly rejected AG

Mazak’s notion that age discrimination should be considered as ‘non-suspect’.

Importantly it maintained that the broad discretion enjoyed by the Member States:

cannot have the effect of frustrating the implementation of the principle of

non-discrimination on grounds of age. Mere generalisations concerning

the capacity of a specific measure to contribute to employment policy,

labour market or vocational training objectives are not enough to show that

the aim of that measure is capable of justifying derogation from that 99 ibid [57] 100 ibid [46] 101 ibid [65] 102 Claire Kilpatrick, ‘The ECJ and Labour Law: A 2008 Retrospective’ (2009) 38 ILJ 180, 188


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principle …103

It continued by citing Seymour-Smith and Perez [1999], the landmark case on

qualifying periods of work, which had reached the same conclusion.104

It stressed that Article 6(1) imposed on the Member States ‘the burden of establishing

to a high standard of proof the legitimacy of the aim relied on as a justification.’105

Significantly the Court had elucidated that age discrimination is to be treated in a

similar manner to other forms of discrimination, and the objective justification test

should be carried out with the same exactness, whilst acknowledging the specific

nature of age and the greater possibilities of an age-based justification.

The concluding status of age discrimination following Age Concern was summed up

succinctly by O’Cinneide: ‘Age is thus treated as both similar and different to other

discrimination grounds: it is treated as a ‘suspect’ category which warrants the

rigorous application of the objective justification test, but nevertheless the special

nature of age and the potential for age-based distinctions to serve rational ends is also

factored into the application of this test.’106

When the case returned to the UK the High Court107 decided the ‘default’ retirement

age (DRA) was lawful, although Blake J recognised the ‘very substantial weight’108 of

the arguments put forward by the Commission and Age UK. The Government had

103 Case C-388/07 R (Incorporated Trustees of the National Court on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] ICR 1080, para 51 104 Case C-167/97 R v Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez (1999) ECR I-00623, paras 75-76 105 Case C-388/07 R (Incorporated Trustees of the National Court on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] ICR 1080, para 67 106 Colm O’Cinneide ‘Age Discrimination and the European Court of Justice: EU Equality Law Comes of Age’ (2009-10) 2 Revue des Affaires Européennes 253, 275 107 R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin) 108 ibid [115]


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already brought forward its review into the DRA, and it was subsequently abolished

with effect from 6 April 2011, subject to transitional provisions).109

It is also relevant to this paper that Blake J also offered guidance on the legitimacy on

social policy measures ‘within the context of national law’ as expressed in Article 6(1)

and concluded that ‘such concerns are discernable from the legislative background to

the case, including the process of consultation and public debate.’110 This emphasised

the holistic nature of social policy as a tool of government and not as an individual

business aim, but expanded the potential scope of the state in proposing that

provisions did not require formal expression to be determined as legitimate.

(v) Restating Mangold

Seda Kucukdeveci111 concerned German legislation that determined minimum notice

periods for dismissal, which disregarded periods of service before the age of 18. When

the claimant was dismissed after 10 years employment, aged 28 and received notice

calculated on three years service she claimed this was illegal age discrimination.

The Court was asked if the German law infringed the Community law prohibiting age

discrimination, and if the law could be objectively justified

In the Opinion AG Bot looked to Age Concern, which had stated the ‘public interest

nature’ of a legitimate aim as distinguishable from purely individual reasons. He

discerned that the ‘flexibility for employers’ could not constitute a legitimate aim in

itself, and somewhat boldly asserted that the ‘public interest nature’ was absent from

the German provision and thus does not pursue a legitimate aim.112

109 The Employment Equality (Repeal of Retirement Age Provisions) Regulations [2011] SI 2011/1069 110 R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin) [90] 111 Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG [2010] ECR I-00365 112 Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG [2010] ECR I-00365, Opinion of AG Bot, para 47


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The Advocate General also recognised that the Directive’s provisions were

‘indissociably linked’ to the general principle of equal treatment.113

The German court maintained that the ‘greater flexibility’ of shorter notice periods

would facilitate the recruitment of younger workers and as such constituted an

employment and labour policy objective. The Court recognised this aim as falling

within Article 6(1) but was not persuaded that it was an appropriate and necessary

measure. It argued that the legislation affected employees ‘unequally’114 and was

therefore not justified.

The Court repeated the basis of the general principle and defiantly referred to Mangold

when stating:

the Court has held that that directive does not itself lay down the principle of

equal treatment in the field of employment and occupation, which derives from

various international instruments and from the constitutional traditions

common to the Member States, but has the sole purpose of laying down, in

that field, a general framework for combating discrimination on various

grounds including age.115

It continued in its support for the ‘Mangold manifesto’, reaffirming it is ‘for the national

court, hearing a dispute involving the principle of non-discrimination on grounds of age

as given expression in Directive 2000/78, to provide, within the limits of its jurisdiction,

the legal protection which individuals derive from European Union law and to ensure

the full effectiveness of that law, disapplying if need be any provision of national

legislation contrary to that principle.’116

113 ibid, para 34 114 Kücükdeveci, para 42 115 ibid, para 20 116 ibid, para 51


31

The Court had thus reaffirmed the principle of age non-discrimination as a general

principle of EU law, which is given expression in the Directive and should be given full

effect by the national courts.

Despite this apparent expansion of the scope of EU law following Mangold, the Court

was not tempted to overrule the ‘indirect effect’ and stressed that ‘a directive cannot of

itself impose obligations on an individual and cannot therefore be relied on as such

against an individual’.117 There was considerable post-case discussion by observers

and academics it would appear that the basic position that directives are incapable of

horizontal effect remains intact.

Importantly, the Court also recognised ‘a new link between the EU Charter of

Fundamental Rights and the general principle of age discrimination’118 In stating: ‘It

should also be noted that Article 6(1) TEU provides that the Charter of Fundamental

Rights of the European Union is to have the same legal value as the Treaties. Under

Article 21(1) of the charter, ‘[a]ny discrimination based on…age…shall be

prohibited.’119

This judgment ‘provides a clear textual basis for the Court’s finding that the general

principle of equal treatment extends to cover age along with the other non-

discrimination grounds.’120 Whilst the Court only used the Charter of Fundamental

Rights of the European Union121 (EUCFR) ‘as a supplementary support’122 this

reaffirmed the ‘suspect’ nature of age and AG Bot concluded his Opinion by

117 ibid, para 46 118 Claire Kilpatrick, ‘The Court of Justice and Labour Law in 2010: A New EU Discrimination Law Architecture’ (2011) 40 ILJ 280, 285 119 Kücükdeveci, para 22 120 Colm O’Cinneide, ‘The Evolution and Impact of the Case-Law of the Court of Justice of the European Union on Directives 2000/43/EC and 2000/78/EC’ (November 2012) 21 <http://www.non-discrimination.net/content/media/Evolution%20and%20Impact%20EN%20FINAL.pdf> accessed 24 March 2014 121 European Union, Charter of Fundamental Rights of the European Union (2000/C 364/01) 122 Claire Kilpatrick, ‘The Court of Justice and Labour Law in 2010: A New EU Discrimination Law Architecture’ (2011) 40 ILJ 280, 285


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commenting on the potential increase in proceedings between private persons if the

EUCFR ‘becomes legally binding in the future’.123

To some commentators Kucukdeveci was considered a ‘full-blooded affirmation of

Mangold’,124 this may appear an over-statement, but the Court had firmly asserted the

continued existence of the general principle of disallowing age discrimination.

Of particular note for the purposes of this paper was the continued contention that

Member States enjoy ‘a broad discretion in the choice of the measures capable of

achieving their objectives in the field of social and employment policy.’125 It was clear

that legitimate aims were readily viewed as complying with the social policies outlined

in Article 6(1). Despite what may be considered the encouraging viewpoint expressed

by AG Bot that the policy objectives in question did not pursue any public goals, and

his belief that flexibility granted to employers did not in itself constitute a legitimate

objective.126 The Court can be seen to take ‘a more generous approach, at times

displaying a limited degree of sensitivity to the realities of age discrimination.’127 Whilst

it may be reserving a stricter scrutiny in applying the proportionality test on a case-by-

case basis, the overarching effect of the leniency granted to age discrimination in

Article 6(1) has led to the Court accepting employment-related justifications,

sometimes with surprising ease.128 Further analysis will indicate that this pattern

123 Kücükdeveci Opinion of AG Bot, para 90. [The charter became legally binding when the treaty of Lisbon came into force in December 2009. Britain (along with Poland) obtained an ‘opt-out’ but the ECJ has subsequently ruled that this did not exempt the UK from the obligation to comply with the provisions of the charter and the precise status of the Charter’s effect in UK law remains a matter of debate.] 124 Claire Kilpatrick, ‘The Court of Justice and Labour Law in 2010: A New EU Discrimination Law Architecture’ (2011) 40 ILJ 280, 286 125 Kucukdeveci, para 38 126 Kücükdeveci Opinion of AG Bot, para 47 127 Dagmar Schiek, ‘Age Discrimination Before The ECJ – Conceptual and Theoretical Issues’ (2011) 48 CMLR 777, 793 128 ibid 796


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continues in the relevant EU case law prior to the seminal case of Seldon v Clarkson

Wright and Jakes.129

(vi) Conclusion

Mangold faced considerable criticism on many fronts, not least from some of the

Advocates General in the cases of Palacios, Lindorfer and Age Concern. However the

Court continued to treat age as a ‘suspect’ ground, whilst conceding to some

limitations of its scope of application.

Despite an element of retracement from the Mangold mantra, the spirit of its ruling

remained. In Kucukderveci the Court continued to acknowledged the non-

discrimination principle on the grounds of age as general principle of EU law, to which

the Directive gives ‘specific expression’.130

In upholding this principle the Court maintained a strict interpretation of the

‘appropriate and necessary’ requirement of Article 6(1). However, in what maybe

viewed as a concession to the concerns of Member States post-Mangold, the Court

deemed an ever-widening range of age-based discriminatory measures as potentially

legitimate aims.

129 Seldon v Clarkson Wright and Jakes [2012] UKSC 16 IRLR 590 130 Kücükdeveci, para 21


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Chapter Three

(i) The road to Seldon

Two cases gave their rulings on the same day, Colin Wolf131 and Domenica

Petersen132, both concerning the working age limits in professions, those of fireman

and dentists respectively. In both cases the notion of encouraging intergenerational

fairness through compulsory retirement was recognised.

In Petersen a German law set a maximum age of 68 for recruiting panel dentists into

their national health service, here the Court identified as legitimate objectives the two

aims of protecting the patients’ health and the financial viability of the health, having

assessed these under Article 2(5) of the Directive.133 The Court also held that the

German Government had the alternative defence of ensuring a fair distribution of

employment among the generations, which was seen to promote intergenerational

fairness, as an ‘appropriate and necessary’ measure under Article 6(1).

Wolf also concerned a German law, this time a rule that restricted applications to the

fire service to those aged under 30. The case was referred to the Court where

ultimately resolved the legislation to be lawful under the ‘genuine occupational

requirement’ defence within Article 4(1) and in doing so declared ‘there is no need to

examine whether it could be justified under Article 6(1) of the Directive.’134

Nevertheless in his Opinion AG Bot had viewed that ‘the aim of creating a balanced

age structure in order to ensure the operational capacity and proper functioning of the

131 Case C-229/08 Colin Wolf v Stadt Frankfurt am Main [2010] ECR I-00001 132 Case C-341/08 Domnica Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe [2010] ECR I-00047 133 Article 2(5) states: This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others. 134 Case C-229/08 Colin Wolf v Stadt Frankfurt am Main [2010] ECR I-00001, para 45


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fire service constitutes an aim relating to employment policy which is ‘legitimate’ within

the meaning of Article 6(1) of Directive 2000/78.’135

Both cases in their different ways, had acknowledged the legitimacy of championing

youth employment through restricting the employment opportunities of older workers,

and had done so without question. However on the issue of capability the cases

appeared to diverge. In Wolf the Court reviewed a substantial amount of evidence

produced by the German Government before accepting that age discriminatory rules

are capable of being justified by age-related decline in performance. Some observers

considered the decision a generous interpretation of Article 4(1) but the scrutiny of

fact-based evidence raised hopes of a more stringent examination of ‘legitimate aims’

in future cases.

In contrast to the evidence-based finding in Wolf, in the Petersen case the Court had

seemingly accepted that the competency of dentists was based on a ‘general

experience’136 that performance levels drop after a certain age (68).

This objective was found to be incompatible as the age limit did not apply to dentists in

the private sector. The judgment was prepared to accept that maintaining financial

stability of the healthcare service was a proportionate means of a legitimate aim in

pursuit of protecting public health, but ultimately the measure was found to be

inconsistent (and therefore not proportionate).

This signified a somewhat relaxed acceptance of age related performance based on

‘assumptions’ rather than on any evidence-based findings. The Court also continued to

show a willingness to grant a wide margin of discretion, on this occasion accepting ‘an

additional justification’137 of intergenerational fairness, which aimed to ‘ensure a

135 Case C-229/08 Colin Wolf v Stadt Frankfurt am Main [2010] ECR I-00001, Opinion of AG Bot, para 42 136 Petersen, para 30 (1) 137 Dagmar Schiek, ‘Age Discrimination Before The ECJ – Conceptual and Theoretical Issues’ (2011) 48 CMLR 777, 787


36

balanced sharing of burdens between the generations’.138 These were considered

disappointing aspects of Petersen. The Court had adopted ‘a rather loose standard of

scrutiny for judging age-related retirement policies motivated by employment market

pressures,’ reminiscent of Palacios.139

Palacios had already established that the encouragement of recruitment through

compulsory retirement was a legitimate aim, although the Court had taken into account

the entitlement to financial compensation by way of a pension. A supposed show of

‘concern’ for the disposition of older workers was taken to a new level in Gisela

Rosenbladt.140 This was another case that arose from the retirement rules in Germany,

in Rosenbladt a collective agreement allowed employers to automatically terminate

employment contacts at pensionable age or age 65 if later. The claimant was a

cleaner who had been ‘retired’ and alleged this rule was a clear case of age

discrimination.

The Court decided that the ‘automatic termination of employment contracts also has

the advantage of not requiring employers to dismiss employees on the ground that

they are no longer capable of working and thus saved those of advanced age from an

experience which may be ‘humiliating’.141

It continued its liberal view on justifying compulsory retirement in accepting as

legitimate the aims of allowing good management of the firm’s workforce and

facilitating the employment of young people in a balanced manner.142 It readily

accepted that ‘[t]he termination of the employment contracts of those employees

directly benefits young workers by making it easier for them to find work, which is

138 Petersen, para 22 139 Dagmar Schiek, ‘Age Discrimination Before The ECJ – Conceptual and Theoretical Issues’ (2011) 48 CMLR 777, 788 140 Case C-45/09 Gisela Rosenbladt v Oellerking Gebäudereinigungsges mbH [2010] ECR I-09391 141 Rosenbladt, para 43 142 ibid, para 60


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otherwise difficult at a time of chronic unemployment.’143 The Court also declared the

means of achieving these aims were appropriate and necessary.

In Vasil Ivanov Georgiev144 the Court chose not to make a ruling on proportionality.

The case concerned a Bulgarian labour law that permitted universities to terminate the

contracts of teaching staff at age 65, and then re-employ them through fixed-term

contracts until age 68. This was not dissimilar to Gerhard Fuchs,145 which examined a

German federal law permitting the region of Land Hassen to retire civil servants at 65,

although this could be postponed annually until an age not exceeding 68, if it was

deemed in the interest of the service.

In Georgiev the Court considered these age limits and in citing Palacios held ‘that

encouragement of recruitment undoubtedly constitutes a legitimate aim of Member

States’ social or employment policy…in particular when the promotion of access of

young people to a profession is involved.’146 It also viewed the employment and

promotion opportunities for younger professors would help ‘to ensure the quality of

teaching and research…by establishing a balance between the generations.’147

This supported the Opinion of AG Bot that this measure would promote exchanges of

experience and innovation,148 and was another example of developing

‘intergenerational fairness’ an aim that had been approved in Petersen.

In Fuchs the Court decided to address the various aims that were proposed as

legitimate in the context of Article 6(1) in one assessment. It reminded Member States

of ‘the right to engage in work’ as recognised in Article 15(1) of the CFREU149 and it

continued ‘particular attention must be paid to the participation of older workers in the

143 ibid, para 43 144 Case C-250/09 Vasil Ivanov Georgiev v Tehnicheski universitet - Sofia, filial Plovdiv [2010] ECR I-11869 145 Joined Cases C-159/10 and C-160/10 Gerhard Fuchs and Peter Köhler [2011] I-06919 146 Georgiev, para 45 147 ibid, para 42 f 148 Case C-250/09 Vasil Ivanov Georgiev v Tehnicheski universitet - Sofia, filial Plovdiv [2010] ECR I-11869 Opinion of AG Bot, para 34 149 Fuchs, para 62


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labour force’ which promotes diversity and contributes to their quality of life.150

This noticeably more enlightened approach towards the plight of older workers was

tempered by declaring in the following paragraph: ‘[h]owever, the interest represented

by the continued employment of those persons must be taken into account in

respecting other, potentially divergent interests.’ Striking this balance (without going

beyond what is appropriate and necessary) was a matter of choice of the national

authorities.151

In both cases the retirement rules were considered capable of being justified, although

ultimately neither were subject to a final ruling.

In Georgiev the Court determined the labour rule was capable of being justified but

noted the limited informational basis for the aims of this legislation and decided it was

for the national courts to determine if the measures were justified on the facts. Again

the ruling followed the pattern the Palacios and Petersen cases in applying a relaxed

level of scrutiny for judging age-related retirement practices driven by employment

market pressures. However the Court had stressed it was essential ‘to identify

precisely the aim which it pursues’152 and noted the written observations of Mr.

Georgiev. He had claimed the Bulgarian Government had ‘merely made assertions’

and the average age of a university professor was 58.153 He submitted that the reality

of the situation was ‘explained by an absence of interest on the part of young people in

a career as a professor.’154

It might be seen as encouraging that subsequently the national court was required to

examine the facts in order to determine the legitimacy of the aims in question.

150 Fuchs, para 63 151 ibid, para 64 152 Georgiev, para 43 153 ibid, para 47 154 ibid, para 47


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In Fuchs the Court recognised establishing ‘a balanced age structure’155 in order to

encourage the recruitment and promotion prospects of young workers, and facilitate

planning staff departures was a legitimate aim, and hereby once again appeared to

sanction the ‘job-blocking’ argument with the ideal of intergenerational fairness within

the context of Article 6(1). On this occasion the Court had recognised the wide-range

of measures that might be considered ‘legitimate’, but not without some caveats.

Importantly the Court ruled that ‘while budgetary considerations can underpin the

chosen social policy…such considerations cannot in themselves constitute a legitimate

aim within the meaning of Article 6(1)’156 [emphasis added]. This helped clarify the

ambiguity relating to costs following Palacios.

The Court however, did not pass judgment on ‘proportionality’, and following on from

Georgiev, it recalled that it was for the national courts to assess their choices based on

fact, including ‘existing and verifiable data’ as well as ‘forecasts’157 and ‘statistical

evidence’.158

These cases had witnessed the Court variously sanctioning a wide-range of social

policy aims as legitimate. Mandatory retirement rules were readily seen as measures

that would create job opportunities for younger people. The Court also confirmed that

the preservation the elder workers dignity by imposing automatic withdrawal from

employment had been also been established as a justifiable motive.

The case of Reinhard Prigge159 was an unusual case of the Court determining a

proposed measure was not a qualified aim within the meaning of Article 6(1). In this

instance a collective agreement applying to the crew of Lufthansa and recognised by

German law, automatically retired pilots at age 60. The three claimants objected to this 155 Joined Cases C-159/010 & C-160/10 Gerhard Fuchs and Peter Köhler [2011] I-06919, para 60 156 ibid, para 74 157 ibid, para 81 158 ibid, para 82 159 Case C-447/09 Reinhard Prigge and Others v Deutsche Lufthansa AG [2011] ECR I-08003


40

blanket provision and the Court was asked whether this rule, applied for air safety

purposes, was compatible with the Directive.

The Court noted that the retirement age of 60 set in the agreement was a lower age

than that provided for by national and international regulations. This was a key factor

in its decision to find that the retirement rule in question was not justified as

proportionate in this case. The result had turned on this specific point, but of more

significance to the functioning of Article 6(1) was that the Court made it clear this

provision ‘must be interpreted to the effect that air traffic safety does not constitute a

legitimate aim within the meaning of that provision.’160 Whilst the aims listed within the

meaning of Article 6(1) are not exhaustive the Court had made it clear that in order to

be a ‘legitimate aim’ it must relate to social policy.

This was a rare example of the Court viewing that the proposed measure did not fall

within the category of ‘legitimate aims’ and as observed by Darren Newman, it might

suggest, ‘that any business objective that does not have a social policy basis cannot

be put forward as justifying age discrimination.’161

(ii) Seldon

In April 2012 the Supreme Court ruled on the case of the solicitor Mr. Seldon that had

begun when he issued proceedings claiming his forced retirement was an act of direct

age discrimination, back in March 2007. Mr. Seldon’s ‘retirement’ was in accordance

with his employer’s partnership deed, and as such the Default Retirement Age (DRA),

although not repealed until 2011, did not apply. However the case was held pursuant

to ‘the Age Regulations’,162which have since been repealed and largely re-enacted in

the Equality Act 2010, which implemented the Directive.

The Supreme Court examined the jurisprudence pertaining to age discrimination with 160 ibid, para 83 161 Darren Newman, ‘Compulsory retirement at 60 not justified’ (2011) 217 EOR 162 The Employment Equality (Age) Regulations 2006, SI 2006/1031


41

particular reference to the justification of compulsory retirement, and was given the

opportunity to provide some clarity.

The Supreme Court acknowledged that age, uniquely amongst the nine ‘protected

characteristics’ that are identified in the Equality Act 2010163 could be subject to direct

discrimination. It also confirmed the approach determined in Age UK v Secretary of

State for Business, Innovation and Skills164 and Fuchs that established direct (as

distinct from indirect) discrimination justification must identify social policy objectives

that are compliant with public interest aims, and not just the needs of the individual

business.

At the Employment Tribunal165 three of the aims put forward by Mr. Seldon’s

employers had been accepted as legitimate, staff retention, workforce planning, and

avoiding performance management and thus promoting collegiality.

Lady Hale turned to the Court’s developing jurisprudence and considered the cases in

chronological order, and broadly restated their findings. She noted AG Bot’s concern in

Kucukdeveci that flexibility of personnel management was considered to be of public

interest nature but acknowledged that the Court had considered it was ‘more than

mere flexibility’166 in its design to encourage the recruitment of young people.

Lady Hale also repeated the finding in Fuchs [at 74] that ‘[b]udgetary considerations

might underpin the chosen social policy, but they could not in themselves constitute a

legitimate aim within Article 6(1)’.167

163 The nine characteristics are listed in the Equality Act 2010 pt 2 c1(4) age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation 164 R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin), [2010] ICR 260 165 Seldon v Clarkson Wright and Jakes [2007] ET/1100275/2007 166 Seldon v Clarkson Wright and Jakes {2012] UKSC 16 IRLR 590 [39] (Lady Hale) 167 ibid [46]


42

The Supreme Court dismissed the appeal by Mr. Seldon, finding that the firm of

solicitors had pursued legitimate aims of a public interested nature that were

consistent with the social policy of the state and the means used were appropriate.

The Supreme Court had provided some clarity, and reasserted that the public interest

nature was distinguishable from individual employer reasons, such as cost reduction;

confirmed that budgetary considerations could not be legitimate aims in themselves;

and determined that flexibility for employers is not a legitimate aim in itself but a

certain degree of flexibility may be permitted to employers in pursuit of their objectives.

Of particular importance for the purposes of this paper is the classification of the

legitimate aims that Lady Hale had ascertained from the emerging case law.

She outlined nine legitimate aims that had been recognised in the context of direct age

discrimination and observed that many of these did to some extent overlap. She

determined that ‘[t]wo different kinds of legitimate objective have been identified by the

Luxembourg court. The first kind may be summed up as inter-generational fairness,’168

which Lady Hale resolved could mean facilitating employment for young people,

enabling older people to remain employed, sharing limited opportunities between

generations, as well as sharing ideas and promoting diversity.169 Lady Hale attempted

to address the problem of the apparent conflicting social policy aims between ‘the

need to get young people into the workforce’ and ‘the need to enable older people to

continue working for as long as they are able and wish to do so.’ She maintained:

‘Only the state (or the social partners) can make the choice between these conflicting

aims and that is clearly what is contemplated by article 6.’170 Many commentators

believe it is incorrect to assume that the aims of promoting employment for the young

168 ibid [56] 169 ibid [56] 170 ibid [28]


43

and older workers cannot be simultaneously fulfilled, and this view will be discussed in

more detail when examining the validity of the notion commonly referred to as ‘job-

blocking’.

The court repeated the concerns for the older worker as expressed in Fuchs, and the

need to find a balance between the interested parties. It has been seen in a number of

judgments that to the detriment of the older worker, this so termed ‘balance’ has been

achieved through compulsory retirement, ‘automatic termination’ of contracts, and the

‘DRA’. These measures have been expressed in a number of cases in various terms

to justify a policy of targeting the elder employees who are viewed as job-blockers:

Palacios ‘encouragement of recruitment’;171 Age UK ‘maintaining confidence in the

labour market’;172 Petersen ‘share out the distribution of employment opportunities

among the generations’;173 Rosenbladt ‘sharing employment between the

generations’174 Georgiev ‘the offer of posts…to younger people’175Fuchs ‘a balance

between generations’.176 These phrases might arguably appear to the older worker as

nothing more than euphemisms for mandatory retirement.

Member States have continued to assert that removing employees of a certain age

from the workforce will promote the employment of young people, and this has been

accepted by the Court with a minimal level of scrutiny. The theory, sometimes

indelicately termed ‘dead man’s shoes’, is at the core of intergenerational fairness and

is deemed by many academics and economists to be fundamentally flawed, and has

become known as the ‘lump of labour fallacy’.

171 Palacios, para 65 172 Age UK [103] 173 Petersen, para 38 174 Rosenbladt, para 43 175 Georgiev, para 45 176 Fuchs, para 47


44

The second legitimate objective identified as dignity177 was interpreted as the aim of

‘avoiding the need to dismiss older workers on the grounds of incapacity or

underperformance, thus preserving their dignity and avoiding humiliation, and as

avoiding the need for costly and divisive disputes about capacity or

underperformance.’ Whilst Lady Hale considered intergenerational fairness as

‘comparatively uncontroversial’178 she recognised the comments in Age UK that stated

the underlying philosophy of all anti-discrimination law is the dignity of each individual,

and she observed that the assumptions underlying the dignity objectives ‘look

suspiciously like stereotyping.’179 However, in citing Rosenbladt and Fuchs she

endorsed Mr. Seldon’s employer’s argument of limiting the need to expel partners

through performance management as aim within the newly established ambit of dignity

and accepted it as legitimate.

The validity of these two legitimate aims, as identified by Lady Hale, will be discussed

in this paper in detail below. It will contest that the concept of ‘job-blocking’ is in fact an

economic fallacy, which lacks any empirical evidence. It will also discuss the adoption

of protecting dignity as an acceptable ground for permitting mandatory retirement as

highly controversial, and at very least questionable.

(iii) Evaluating intergenerational fairness

One of the main arguments put forward to establish the legitimacy of Member States’

retirement policies falls under the banner of ‘intergenerational fairness’, as categorised

by Lady Hale. The core of which is the facilitating of employment for young persons by

removing the ‘job-blocking’ older workforce. The Court has continually shown a

willingness to accept the assumption that job-blocking is a reality, despite the

177 Seldon v Clarkson Wright and Jakes {2012] ICR 716 [39] (Lady Hale) at 57 178 ibid [57] 179 ibid [57]


45

overriding opinion of many academics and economists.

The idea that older workers ‘block’ access to the labour market for younger people is

based on the ‘lump of labour’ theory, which can be traced back to the Victorian

polymath Henry Mayhew.

He observed London’s working class and in his papers of the 1850’s and reasoned

that cutting the number of hours worked by employees would reduce

unemployment.180 At its most basic level this concept holds that there is a fixed

number of jobs in the economy, but this is over simplistic and the model is flawed. As

Hepple warned, ‘one must beware’ of concluding that ‘every job occupied by an older

person precludes a job available for a younger person.’181 The lump of labour principle

dominated much of the macro-economic policies of Western Europe in the 1970s

and1980s but subsequent studies and research have largely discredited this notion,

and there is broad acceptance that ‘contemporary markets are capable of significant

expansion’.182 The idea that there is essentially a fixed stock of jobs is considered by

most economists to be a ‘fallacy’,183 however in specific circumstances it does have

some support.

The Nobel Prize-winning American economist Paul Krugman expressed an opinion in

an article for the New York Times that ‘the fallacy makes a comeback whenever the

economy is sluggish’184 and Stephen McNair commented in a paper for the UK

Commission for Employment and Skills: ‘While in general, this “lump of labour”

hypothesis has been discredited, it can be true in particular occupations, sectors or

180 Henry Mayhew, London Labour and the London Poor (George Woodfall and Son London, 1851) 181 Brian Hepple, ‘Age Discrimination in Employment: Implementing The Framework Directive 2000/78/EC’ in Sandra Fredman and Sarah Spencer (eds), Age as an Equality Issue (Hart Publishing 2003) 90 182 John Macnicol, Age Discrimination – An Historical and Contemporary Analysis (CUP 2006) 96 183 The expression ‘lump-of-labour fallacy’ has been traced back David F Schloss, ‘Why Working Men Dislike Piece Work’ The Economist (London, 1891) 184 Paul Krugman, ‘Lumps of Labor’ New York Times (New York 7 October 2003)


46

localities.’185

Despite this small voice of dissention, which gives credence to the observation

attributed to George Bernard Shaw: ‘If all economics were laid end to end, they would

not reach a conclusion’, the overwhelming evidence is that the number of people

competing for jobs actually leads to an increase in the total number of jobs in the

economy.

Of course there will be situations when an older worker in a specific job may be

preventing a younger person from taking on that role, but these are particular

circumstances and form part of microeconomics that focuses on the individuals.

Macroeconomics studies the ‘bigger picture’ and all the evidence suggests that in the

economy as a whole, the older worker continuing in productive employment will

contribute to growth and a greater demand for more jobs.

Mayhew’s study was well intentioned, but somewhat unsurprisingly he failed to

account for advances in technology that have created an increasing number of

products and services and greater demand for labour. This theory also ignores the

supply-side dynamics; a more a competitive labour market emerges, and each

employee is also a consumer, leading to increased spending and an expanding job

pool.

A major study of 12 countries concluded in a working paper for the National Bureau of

Economic Research that ‘the weight of the evidence suggests that increasing the

employment of older persons provides more job opportunities for younger persons and

reduces the unemployment rate of younger persons.’186

Using statistics from the US 1977-2011 and the corresponding data available on

China, research published for the Center for Retirement Research at Boston College

185 Stephen McNair ‘Older people and skills in a changing economy’ (2011) UKCES Briefing Paper Series, 24 186 Jonathan Gruber, Kevin Milligan, David Wise, ‘Social Security Programs and retirement Around the World: The Relationship to Youth Employment, Introduction and Summary’ (2009) NBER Working Paper No.14647, 64


47

found ‘no consistent evidence that changes in employment rates of older people

adversely affect the employment (both intensive and extensive margins) and wage

rates of their younger counterparts. If anything, the opposite is true.’187 In 2010 the

Institute for Fiscal Studies reported in a working paper: ‘When looking at the entire

1968- 2005 period, labour force participation of the old is positively associated with

employment of the young…Overall we find no evidence of long-term crowding-out of

younger individuals from the labour market by older workers.’188

The weight of evidence clearly upholds the notion that the concept of ‘lump of labour’

is indeed a ‘fallacy’, and yet Member States continue to promote the withdrawal of

older members from the workforce in an attempt to create jobs for younger persons,

engaging in measures which the Court sanctions with surprising ease. As observed by

Bisom-Rapp and Sargeant: ‘There is no evidence supporting the general argument

that removing older workers provides opportunities for younger workers. Nevertheless,

the CJEU has appeared willing to accept this stance as part of its jurisprudence.’189

In the UK it would appear that the Government has now adopted the approach that

encouraging older workers to remain employed is good for the economy at large, and

will potentially increase the opportunities for youth employment. Back in 2000, the

Labour Government produced ‘Winning the Generation Game’, stating it was a

‘misplaced belief that there are a fixed number of jobs in the economy’ and maintained

187 Alicia H. Munnell and April Yanyuan Wu, ‘Will Delayed Retirement by the Baby Boomers Lead to Higher Unemployment Among Younger Workers?’ (2012) Center for Retirement Research at Boston College Working Papers WP 2012-22, 2 <http://crr.bc.edu/working-papers/will-delayed-retirement-by-the-baby-boomers-lead-to-higher-unemployment-among-younger-workers/> accessed 26 March 2014 188 James Banks, Richard Blundell, Antoine Bozio and Carl Emerson, ‘Releasing jobs for the young? Early retirement and youth unemployment in the United Kingdom’ (2010) IFS Working Papers Series W10/02, 24 189 Susan Bisom-Rapp and Malcolm Sargeant, ‘Diverging Doctrine, Converging Outcomes: Evaluating age Discrimination Law in the United Kingdom and the United State (2013) 44 Loyola University Chicago Law Journal 2013 717, 750


48

that a flexible labour market with more people competing for jobs creates higher

growth and leads to the number of jobs in the economy increasing.190

Following the decision to repeal the DRA in 2011 this stance has become more

entrenched. The consultation document ‘Phasing out the Default Retirement Age:

Government response to consultation’ announced in its foreword: ‘Evidence shows

that keeping more people in work helps the economy grow. It is estimated that, if

everyone worked a year longer, annual GDP could increase by £13bn…It is not the

case that older people in work block jobs for younger people.’

A 2013 publication by the Department for Work and Pensions continued in this vein,

declaring: ‘Some people mistakenly believe that productive older workers should make

way for younger workers and “free up the job market” but the facts show this can

create further problems for both the business and the wider labour market.’191 This

was followed soon afterwards by ‘Ready for Ageing?’, a House of Lords report, which

recommended that: ‘The Government should publicly reject the “lump of labour fallacy”

that wrongly argues this will disadvantage the young.’192

This would appear to signal that a compulsory retirement rule on the grounds of

intergenerational fairness through addressing the so termed ‘job-blocking’ issue would

no longer be considered a ‘legitimate’ public interest aim in the UK.

In view of these developments it would seem unlikely that a UK court would accept an

argument for retiring staff based on the lump of labour theory; following the guidance

190 Cabinet Office Performance and Innovation Unit, Winning the Generation Game: Improving Opportunities for People Aged 50-65 in Work and Community Activity (Stationery Office Books, 2000) 39 <http://webarchive.nationalarchives.gov.uk/+/http://www.cabinetoffice.gov.uk/media/cabinetoffice/strategy/assets/generation.pdf> accessed 25 March 2014 191 Department for Work and Pensions, ‘Employing older workers: an employer’ s guide to today’s multi-generational workforce’ 8 February, 2013 <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/142751/employing-older-workers.pdf> accessed 25 March 2014 192 Select Committee on Public Service and Demographic Change, ‘Ready for Ageing?’ [Report of Session 2012-13] HL Paper <http://www.publications.parliament.uk/pa/ld201213/ldselect/ldpublic/140/140.pdf> accessed 26 March 2014


49

of Blake J in Age UK, it would be hard to corroborate the view that this remains a

legitimate social policy measure ‘within the context of national law’.

It is however, unlikely that other EU Member State’s will adopt this more enlightened

approach in the near future. The realpolitik of a nation such as Spain makes it difficult

to reverse a domestic policy that is heralded as a measure seeking to tackle youth

unemployment currently running at 55%, regardless of empirical data and the

conclusion of the vast majority experts in the field of labour market economics. It is up

to the Court to question the objective justification of measures aimed at job blocking

and request supporting evidence for these measures social policy.

The second important aspect of intergenerational fairness relates to the

encouragement of mutual cooperation and support between the age groups, which

promotes diversity and the interchange of ideas.

It is clear that young employees are a crucial part of this workforce interaction;

however removing older people will surely limit the perceived benefits of any such

‘interplay’. A compulsory retirement age creates a cut-off point, restricting the level of

experience that can be gained and then passed on. This idea of fairness should

include elder workers, and not be at the expense of them, their contribution to the

labour market will help cope with the demanding challenges of demographic change

that lay ahead.

The interchange between generations would be more productive with a wider range of

ages in the workplace. This could be achieved by, as argued above, refuting job-

blocking measures and avoiding the compulsory retirement of staff, at least until their

inside knowledge and experiences have been passed on and retained within the

business. The best way to promote intergenerational solidarity is to maintain a

workforce that spans all ages, through preserving and creating jobs, and not by

enforced rules of retirement.


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(iv) Interpreting ‘dignity’

Lady Hale ‘summed up’193 dignity as a legitimate objective which justified compulsory

retirement as a means of avoiding the humiliation of dismissal due to

underperformance or capacity, and avoiding any associated costly disputes. She cited

Rosenbladt and Fuchs, and followed on from Sir Mark’s Waller judgment in the Court

of Appeal, where he had discerned, ‘my experience would tell me that it is a

justification for having a cut-off age that people will be allowed to retire with dignity’.194

Nevertheless Lady Hale acknowledged the controversial aspect of dignity in relation to

the field of age discrimination. Dignity as a concept is a complex issue at the heart of

the debate between the ‘competing values’195 of liberty and equality. As AG Stix-Hackl

declared in the Omega case regarding fictitious violence and human dignity in

Germany: ‘There is hardly any legal principle more difficult to fathom in law than that of

human dignity’.196Lady Hale had expressed her own concern that the underlying

assumptions resembled stereotyping, which would appear to be the obvious

conclusion. It is hard to see how a blanket approach to retiring older workers based

on the entrenched but often unfounded idea of declining performance, can be seen as

anything other than stereotyping. Stereotyping is a form of prejudice, and a violation of

human dignity, and as Fredman reminds us, ‘it is a fundamental aim of equality to

ensure that an individual is treated according to her merit, free of stereotypical

assumptions’.197

193 Seldon [57] (Lady Hale) 194 Seldon v Clarkson Wright and Jakes EWCA Civ 899 [23] (Sir Mark Waller) 195 Sandra Fredman, Discrimination Law (Routledge 2013) 33 196 Case C-36/02 Omega [2004] ECR I-9609, Opinion of AG Stix-Hackl, para 74 197 Sandra Fredman, ‘What do we mean by age equality?’ (IPPR seminar, Nuffield Foundation, November 2001) 17


51

It is accepted that in certain cases the right or principle of dignity may be invoked to

justify restricting other rights.198 Forced retirement would seem incompatible with age

equality, however Member States have argued that imposing retirement on older

workers will serve in the social and economic interests of the younger generation. It

may be considered that in this case the dignity of the older workers is not infringed as

retirement is not applied to them out of contempt or an assumed deterioration in

performance, and so the egalitarian notion of dignity will be upheld.199 It has been

asserted that this ‘addresses the egalitarian concerns surrounding retirement, and

suggests that the current CJEU approach of justifying the flexible retention of

retirement ages is compatible with concepts of dignity and respect for the individual’.200

However this notion is based on the belief that intergenerational solidarity is better

served by confronting the issue of job-blocking, an approach that as discussed here is

largely discredited as being economically unsound. It is also relevant that in this case

Lady Hale was equating dignity with humiliation, her reasoning was from the

perspective of self-respect and separate from the issue of intergenerational fairness,

and as such this aspect of Seldon is not engaged in the economic egalitarianism

debate.

Of course violations to dignity may have psychological consequences, and as Reaume

commented, to protect this ‘we must be attentive to the ways in which our treatment of

others diminishes self-respect’,201 but a subjective approach that encourages judges to

make decisions based on other people’s feelings does not give adequate guidance to

198 Rory O’Connell, ‘The role of dignity in equality law: Lessons from Canada and South Africa’ (2008) 6 IJCL 267, 269 199 Simonetta Manfredi and Lucy Vickers, ‘Meeting the Challenges of Active Ageing in the Workplace: is the Abolition of Retirement the Answer?’ (2013) 4 ELLJ 250, 263 200 ibid 264 201 Denise G. Reaume, ‘Discrimination and Dignity’ (2003) 63 Louisiana Law Review 1, 32


52

the content of dignity.202 As Reaume later affirmed, ‘the harm should be understood to

inhere in the denial of respect per se. In other words, harm to dignity is better

understood as an independent, objective harm, not a matter of hurt feelings.’203 She

continued to argue the need for ‘keeping the Court focused on the meaning of dignity

and its impairment.

In the final analysis, the question of what constitutes a violation of dignity is a

normative question, not an empirical one about psychological effects.’204

This viewpoint was supported in the concluding remarks of O’Connell in his article on

the role of dignity; ‘if we must use the concept of dignity in equality law, then we need

to avoid subjectivity’205

It is apparent from this discussion that dignity is multifaceted and therefore its use as a

concept for judicial decision-making on discrimination is problematic. As Fredman

observed: ‘Dignity is of course frequently an opaque concept’206 and it has been

variously described as ‘vague to the point of vacuous’,207 ‘fuzzy’208 with ‘’a chameleon-

like quality’209 and ‘malleable nature’.210 As such ‘the concept of dignity is sufficiently

202 Rory O’Connell, ‘The role of dignity in equality law: Lessons from Canada and South Africa’ (2008) 6 IJCL 267, 284 203 Denise G. Reaume, ‘Discrimination and Dignity’ (2003) 63 Louisiana Law Review 1, 39 204 ibid 39 205 Rory O’Connell, ‘The role of dignity in equality law: Lessons from Canada and South Africa’ (2008) 6 IJCL 267, 285 206 Sarah Fredman, ‘The Age of Equality’ in Sandra Fredman and Sarah Spencer (eds), Age as an Equality Issue (Hart Publishing 2003) 45 207 Denise G. Reaume, ‘Discrimination and Dignity’ (2003) 63 Louisiana Law Review 1, 2 208 Rory O’Connell ‘The role of dignity in equality law: Lessons from Canada and South Africa’ (2008) 6 IJCL 267, 285 209 Gary Moon and Robin Allen, ‘Dignity discourse in discrimination law: a better route to equality?’ (2006) EHRLR 610, 615 210 R O’Connell and J McBride, ‘Age Discrimination in Employment: Comparative Lessons’ Report for Changing Ageing Partnership (2010) 5 http://www.academia.edu/350475/Age_Discrimination_in_Employment_Comparative_Lessons> accessed 20 March 2014


53

broad so as to allow judges to invoke unarticulated norms to decide difficult issues.

This may reinforce stereotypes and prejudices rather than combat them.’211

The retirement of older workers to protect their self-esteem by avoiding potentially

degrading appraisals is a clear example of stereotyping, as Fredman contested, ‘it is

an affront to the dignity of the individual to assume that he or she shares the

characteristics of everyone else in his or her age group’.212 Lady Hale recognised this

controversial aspect of her ruling, but this decision is equally contentious as an

example of its wide-ranging interpretation. As McCrudden cautioned, ‘instead of

providing a basis for principled decision-making, dignity seems open to significant

judicial manipulation, increasing rather than decreasing judicial discretion.’213 The use

of this concept in age discrimination law can be precarious and open to contention,

and through examining the debate and reflecting on various writings on this

complicated issue, it is hard to reconcile dignity as an identified legitimate aim in the

context of Seldon. O’Connell has warned, ‘unless firmly anchored to ideas about

prejudice, stereotypes, and disadvantage, a recourse to "dignity" may actually hinder

the quest for substantive equality.’214

Prior to Waller’s LJ ‘experience’ as a basis for dignity, Blake J had addressed this

issue in Age UK and determined that it was actually the imposition of retirement on

211 Rory O’Connell, ‘The role of dignity in equality law: Lessons from Canada and South Africa’ (2008) 6 IJCL 267, 28 212 Sarah Fredman, ‘The Age of Equality’ in Sandra Fredman and Sarah Spencer (eds), Age as an Equality Issue (Hart Publishing 2003) 45 213 Christopher McCrudden , ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 EIJL 655 214 Rory O’Connell ‘The role of dignity in equality law: Lessons from Canada and South Africa’ (2008) 6 IJCL 267, 286 214 Gary Moon and Robin Allen, ‘Dignity discourse in discrimination law: a better route to equality?’ (2006) EHRLR 610, 615


54

older workers who wished to continue employment that ‘had an adverse effect on the

dignity and autonomy of members of this class.’215

An obvious question to ask would be ‘whether being jettisoned from the workplace

based on age is any more dignified than losing one’s job due to allegations of

performance deficiencies.’216 Following the repeal of the DRA employers are more

likely to rely on integrated performance management programmes, echoing the view of

the Government that is seeking to ‘[e]ncourage an open culture of active performance

management, formal or informal, throughout workers’ careers to avoid unexpected

announcements, confrontations or “loss of dignity”.’217 It would appear unlikely that

adopting a ‘blanket retirement’ policy to avoid the possible humiliation of merit-based

personal appraisals would stand as a legitimate aim. The other motive behind this

dignity argument is the claim that it eschews ‘costly and divisive disputes about

capacity or underperformance’.218 This a secondary consideration, as Fredman

iterated, it is important ‘that the dignity argument be placed firmly on the foundation of

individual rights, and not be interpreted from the business perspective.’219 The EU

case law has established that in cases of direct discrimination, efficiency and

budgetary considerations cannot in themselves constitute a legal aim220, as per the

meaning of Article 6(1).

Under scrutiny the validity of the legitimate aims as identified by Lady Hale are at very

least questionable in the legal landscape of the UK today. Connolly considers that the

215 Age UK [122] (Blake J) 216 Susan Bisom-Rapp and Malcolm Sargeant, ‘Diverging Doctrine, Converging Outcomes: Evaluating Age Discrimination Law in the United Kingdom and the United States’ (2103) 44 Loy. U. Chi. LJ 717, 752 217 Department for Work and Pensions, Age Positive – Workforce management without a fixed retirement age (2011) 13 <http://webarchive.nationalarchives.gov.uk/20110117184244/http://www.dwp.gov.uk/docs/workforce-mgt-without-fixed-retirement-age.pdf> accessed 26 March 2014 218 Seldon [57] 219 Sandra Fredman, ‘What do we mean by age equality?’ (IPPR seminar, Nuffield Foundation, November 2001) 20 220 Fuchs, para 52


55

Government’s view is now ‘that dignity is preserved by performance management’,221

and added ‘that job-blocking may no longer be considered a public policy aim, and this

aspect of Seldon is no longer good law.’222

(v) Conclusion

The identified aims in Seldon, referred to as ‘succession planning’ and ‘collegiality’ will

become increasingly unreliable, and businesses will find it hard to determine

supporting social policies for compulsory retirement from the ‘context’ of UK law. If the

Court is prepared to demand hard evidence from Member States before permitting

derogation from the principle of non-discrimination, it is hoped that the aims defined as

intergenerational fairness and dignity will become increasingly difficult to justify.

Chapter Four 221 Michael Connolly, ‘ The Coalition Government and age discrimination’ (2012) 2 JBL 144, 150 222 ibid 148


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(i) Changing demographics

Across Europe the demographic change as a consequence of living longer, lower

fertility rates and migration, has created a major challenge for the European Union.

In the UK period life expectancy of males and females born in 2012 is 79 and 82.7

years respectively. However this expectation of longevity makes no allowance for any

projected or actual changes in mortality, the cohort life table provides for these

variations and produces a more realistic projection that for a boy born in 2012 life

expectancy rises to 90.6 and a to 93.9 years for a girl.223 These quite striking figures

give an indication of the dramatically changing demographics that we are

experiencing, and will continue to experience.

The problems that are associated with the Europe-wide ageing population are

compounded by its shrinking workforce. The population of the EU-27 reached 504

million in 2012, and is expected to peak at 526 million in 2040 and then decline to 517

million by 2060. During this period the percentage of persons age 65+ will increase

from 17.5% to 29.5% of the population. 224

This population movement between age groups will has enormous socio-economic

implications, and a European Policy Centre Report from November 2012 concluded

with this stark message:

Demographic change and in particular population ageing are considerable

challenges for Europe’s economic and social model and need to be addressed

as a measure of urgency. When assessing the dependency, which arises from

having a larger population share that is not in employment, there is a clear, need

223 Office for National Statistics, Historic and Projected Mortality Data from the Period and Cohort Life Tables, 2012-based, UK, 1981-2062 (2013) <http://www.ons.gov.uk/ons/dcp171778_345078.pdf> accessed 23 March 2014 224 European Commission, Eurostat <http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/Population_structure_and_ageing#Future_trends_in_population_ageing> accessed 23 March 2014


57

to go beyond considering purely demographic measures: labour market

participation is clearly crucial, not only to deal with the impact of ageing but also

for social cohesion and well-being.225

Another statistic of concern is the old-age dependency ratio, which indicates the ratio

of people aged 65+ to those aged 20-64, reveals a projected between 2010 and 2050

from 28% to 58%. This is a move from having four people of working age to just two

people of working age for every per person aged 65+.226

The labour market adjusted dependency ratio (LMADR) is generally considered a

more valuable analysis, in that it calculates the proportion of people actually in work.

These figures, assuming constant employment rates, are even more disquieting. The

percentage of people across the EU not in employment (ignoring those aged 0-14)

rises from 47.7% in 2010 to 56.3% in 2050.227

The clear picture is that of the EU-27 is getting older, increased life expectancy and

low fertility levels are expected to continue. The continued rise is the share of the total

population of persons will resulting in a continued pressure on the financing of public

pensions, health care and long-term care for the aged. In the UK, despite

implementing a three-stage increase to the state pension age, the number of people

entitled to a pension is projected to rise by 31% in the 25-year period from mid-2012 to

mid-2037.228

The European Commission (EC) has already recommended linking the retirement age

to life expectancy to maintain the sustainability of the public pension system.

225 Erik Turk, Josef Woss and Fabian Zuleeg, ‘1000 billion Euros at stake: How boosting employment can address demographic change and public deficits’ (2012) European Policy Centre Issue Paper No 72, 19 <http://www.epc.eu/documents/uploads/pub_3074_1000bn_euros_at_stake.pdf> accessed 22 March 2014 226 ibid 3 227 ibid 9 228 Office for National Statistics, National Population Projections, 2012-based Statistical Bulletin (2013) 9 <http://www.ons.gov.uk/ons/dcp171778_334975.pdf> accessed 28 March 2014


58

This would require a continual adjustment to pension age entitlement and would

necessitate a parallel increase with the ‘average age of exit’ of the EU, which is only

predicted to increase from age around 62 today to 64 by 2060.229 This rise would be

insufficient, and arguably the EU-wide removal of any ‘default’ retirement age

legislation would be a more effective and efficient measure.

Meanwhile the ageing population and shrinking proportion of people in work continues

to create increasing pressure on the finances of the Member States. The consensus is

that people across the EU ‘will need to continue to work longer in order to sustain tax

and benefit systems based on redistribution and to support themselves up until the

age that they can access income through public pensions or private savings.’230

Raising the retirement age (or ideally removing it) needs to be aligned with promoting

the contribution that can be made by the older cohorts. ‘Broader participation in the

labour market is not just the best response to the demographic challenge and

pensions issues: it is also a major factor driving economic growth, fiscal sustainability

and citizens’ well-being.’231

It is quite clear that the EU is facing considerable challenges and there have been

calls for urgent addresses to the social and economic model. Increased labour market

participation is vital, particularly amongst older persons, and this will require policy

changes. It is recognised that political action will face opposition from different parties,

especially amongst the business community, and those who insist that ‘job-blocking’ is

a reality and believe the notion that it reduces employment opportunities for the youth

still holds true.

229 Daniela Silcock and David Sinclair, ‘The cost of our ageing society’ (2012) ILC-UK International Longevity Centre, 10 230 ibid 10 231 Erik Turk, Josef Woss and Fabian Zuleeg, ‘1000 billion Euros at stake: How boosting employment can address demographic change and public deficits’ (2012) European Policy Centre Issue Paper No 72, 11 <http://www.epc.eu/documents/uploads/pub_3074_1000bn_euros_at_stake.pdf> accessed 22 March 2014


59

However as the budgetary pressures continue there must be a growing

acknowledgement that labour market participation is crucial not only in dealing with the

impact of ageing but also for promoting social cohesion and well-being. It is hoped that

there will be sea change across the continent in the Member States’ attitudes towards

retirement, resulting in a move away from measures that force older workers to

withdrawal from providing labour. It is also time for the Court to promote the

recommendations of the EC, and a perfect starting point would be to take a more

stringent stance in the assessment of any proposed ‘legitimate aims’ for measures that

result in direct age-discrimination in the form of compulsory retirement.

(ii) Conclusion

The UK is better placed than most of its EU counterparts, it is forecast that by 2050 it

have the lowest proportion of people aged over 65 amongst the Member States.

However this cohort will still account for 23% of the total population,232 and according

to the Office for National Statistics the number of people in the UK aged 80 and over

will more than double by mid-2037.233 Across the EU the situation is even more acute,

a European Policy Centre paper evaluated the labour market adjusted ratio and gave

this stark warning: ‘The LMADR also shows that with current employment performance

the situation will be untenable across the EU by 2050.’234

According to the European Commission: ‘Ageing is one of the greatest social and

economic challenges of the 21st century for European societies. It will affect all EU

232 Erik Turk, Josef Woss and Fabian Zuleeg, ‘1000 billion Euros at stake: How boosting employment can address demographic change and public deficits’ (2012) European Policy Centre Issue Paper No 72, 9 <http://www.epc.eu/documents/uploads/pub_3074_1000bn_euros_at_stake.pdf> accessed 22 March 2014 233 Office for National Statistics, ‘National Population Projections, 2012-based Statistical Bulletin’ (2013) 1 <http://www.ons.gov.uk/ons/dcp171778_334975.pdf> accessed 28 March 2014 234 Erik Turk, Josef Woss and Fabian Zuleeg, ‘1000 billion Euros at stake: How boosting employment can address demographic change and public deficits’ (2012) European Policy Centre Issue Paper No 72, 9 <http://www.epc.eu/documents/uploads/pub_3074_1000bn_euros_at_stake.pdf> accessed 22 March 2014


60

countries and most policy areas.’235 It is imperative that the Member States consider

new policy measures that include removing restrictions to employment, hopefully

including the removal of automatic retirement measures.

235 European Commission <http://ec.europa.eu/health/ageing/policy/index_en.htm> accessed 28 March 2014


61

Conclusion

Age discrimination is a relatively new concept, it was fully recognised by EU law in

Council Directive 2000/78/EC at a time when it was still largely absent from the

existing national law of many of the Member States. This is one explanation for the

cautious approach of the Directive, which entitled a wide discretion to providing legal

justification for age-based discrimination in the workplace. The Court has been largely

acquiescent in accepting that compulsory retirement policies can be justified through

‘legitimate aims’. It has taken a more critical stance in determining if such aims are

‘appropriate and necessary’, but this ‘case-by-case’ scenario can be seen to

undermine the implementation of non-discrimination principles.

The Court has continually sanctioned a wide-range of discriminatory measures as

valid social policies within the public interest, and therefore potentially legitimate.

These laws and rules are often based on false assumptions and lacking solid empirical

evidence. This damages the status of ‘age’ as a protected ground; it creates negative

perspective amongst the national authorities, which can filter through to society as a

whole.

The case of Mangold established that the principle of non-discrimination on the

grounds of age was an aspect of the wider principle of equal treatment and determined

its ‘suspect’ nature.

The reaction to this controversial ruling has been discussed in detail, and despite

criticism from various quarters and stakeholders, the essence of Mangold has been

preserved, although this has been accompanied with a tacit recognition of the

concerns voiced by many observers and national courts. The Court has been

restrictive in its scope when applying the test of proportionality, but noticeably

submissive in its acceptance of the potential legitimacy of aged-based discriminatory


62

measures. The apparent willingness of the Court to condone these measures may be

seen as a pragmatic way to reduce the tension amongst the Member States that

followed Mangold’s interpretation of the Directive.

The emerging case law post-Mangold has followed this pattern of a generous and

flexible understanding of the term ‘objectively and reasonably justified’ followed by a

more comprehensive analysis in determining when a measure is ‘appropriate and

necessary’.

There has been an indication of a slight shift of focus in the more recent cases before

the Court. In Torsten Hornfeldt236 the Court considered Sweden’s 67-year rule and in

the ruling it concluded that aims of promoting recruiting younger persons and

preserving older workers dignity were potentially legitimate aims. However it also

noted that the rule gave people the right to work past 65, and that encouraging older

workers to continue their career was a legitimate social policy.

In European Commission v Hungary237 the Court ultimately decided that a national

scheme requiring the compulsory retirement of judges, prosecutors and notaries to

retire at 62 was not proportionate regarding the objectives pursued. However what

was also notable was the tough stance it took when stating: ‘Hungary has failed to

provide any evidence to enable it to be established that more lenient provision would

not have made it possible to achieve the objective at issue.’238 This affirmation of the

requirement of evidence was encouraging, albeit in regards to the question of

proportionality.

These are small but nevertheless important acknowledgments by the Court. They

followed on from the encouraging signals in Fuchs, which restating the need to support

236 C-141/11 Hörnfeldt v Posten Meddelande AB [2012] 237 C-286/12 European Commission v Hungary [2012] 238 ibid, para 71


63

the increased participation of older workers in the workforce, as per recital 8 in the

Preamble to the Directive;239 and the requirement of supportive evidence.240

These decisions followed the pattern of approving the objectivity of the aims as

legitimate, but they signal the hope that in future the Court may be prepared to

demand empirical evidence on a more regular basis, and crucially at the objective

justification stage. It is also hoped the Court will openly endorse policies that promote

further participation of the older members of the workforce, and take a more discerning

at the reality of the ‘balancing act ‘ required between the older and younger workers.

To date there has been inconsistency in the Court’s requirement of evidence from

Member States, however the Court should seek further proof that the policies in

question are justified and will produce the desired effect. As reported in Age Concern,

the measures adopted ‘cannot have the effect of frustrating the implementation of the

principle of non-discrimination on grounds of age’ and mere generalisations are not

enough.241

As this area of case law continues to develop, it will expand in scope and influence.

The Court has the opportunity to influence the Member States’ attitude to age

discrimination and create the awareness that any derogation will be scrutinised

exactingly and hurdle of ‘objectively and reasonably justified’ becomes an increasingly

harder to clear.

It has been contended that one of the objectives of the Court when addressing Article

6(1) is to seek a consensus between the diverging interests of ‘employers and

employees’. The drive for legislation prohibiting age discrimination is motivated by the

concepts of individual rights and equality, however these ideals are often weighed 239 Fuchs, para 3 240 Fuchs, para 83 241 Case C-388/07 R (Incorporated Trustees of the National Court on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] ICR 1080, para 51


64

against the need for effective economic policies and the overall welfare of society. This

paper has sought to analyse the core aspects of these essentially conflicting aims has

determined that they may find themselves ‘strange bedfellows’.

This potential ‘alliance’ can be understood through the assessment of

intergenerational fairness and dignity, as defined in Seldon. This thesis has questioned

their validity as legitimate aims; it has discussed ‘job-blocking’ and the lump of labour

theory that is at the heart of intergenerational fairness through promoting a balanced

workforce, and concluded that it is fundamentally flawed. This concept is unsupported

by empirical evidence and discredited by economists. It is well established that ‘early

retirement does

not make jobs available for people who would otherwise be unemployed: it just

reduces employment.’242

The other category established in Seldon was formulated under the banner of dignity.

The use of this contentious concept as a legitimate aim of avoiding humiliation of older

workers might also be considered specious. The loss of dignity through blanket

dismissal must be weighed against the loss of self-esteem in losing a job before you

are ready and willing to stop working. Lady Hale herself recognised the issue of

stereotyping was a concern with regard to this notion, and it is arguable that the

respect of individual autonomy would be better served through merit based

performance appraisals.

Following the case of Age UK and subsequent recommendations, the UK Government

repealed the DRA and introduced policies to promote employment opportunities for

242 Richard Layard, Stephen Nickell and Richard Jackman, Unemployment: Macroeconomic Performance and the Labour Market (2nd edn, OUP 2005) 73


65

older people243. The change of ‘context’ in our national law has resulted in compulsory

recruitment becoming the exception and not the rule.

For this to occur throughout the EU there needs to be a recognition that age-based

discrimination is not only detrimental to the principle of equality, but that restricting

labour market participation will be damaging to the economy in the face of seismic

changes in the demographic landscape.

This paper argues that the EU needs to reject the false notion of ‘job-blocking’ and

facilitate the employment opportunities of the older workforce to the benefit of both the

economy and the welfare of society.

The inclusion of Article 6(1) within the Directive reflects that the legislative has

prioritised the concerns of economics and business interests over the fundamental

wrongs of age discrimination within the workplace. However the opportunity now exist

to improve the financial welfare of the EU through the abolition of compulsory

retirement, utilising the resource of experienced older workers that will result in the

dual benefit of greater fiscal stability and enhanced rights for the individual.

O’Cinneide observed the ‘minimal’ approach that exists in ‘treating age discrimination

as a labour market issue rather than as an infringement of equality and fundamental

rights has been a significant influence on the final shape of the Directive, and in

particular the very permissive scope of labour market objective exception in Article

6’.244 However it is these very labour market issues that may eventually force the

national authorities to remove all forms of mandatory retirement. As Dewhurst

243 Dept for Work and Pensions ‘Improving opportunities for older people 2013 <https://www.gov.uk/government/policies/improving-opportunities-for-older-people> accessed 27 March 2014 244 Colm O’Cinneide, ‘Comparative European Perspectives on Age Discrimination Legislation’ in Sandra Fredman and Sarah Spencer (eds), Age as an Equality Issue (Hart Publishing 2003) 200


66

declared: ‘It is time to encourage, and not discourage, an active and aging workforce

and to embrace the skills, flexibility and inherent wisdom of older workers.’245

As this area of case law continues to develop it will expand in scope and influence, a

more robust determination of legitimate aims will demonstrate the Court’s recognition

of the ‘suspect’ nature of age. The Court’s jurisprudence can over time, influence the

Member States’ perspective, and the view of society may evolve to a point where the

legitimacy of age discrimination in the sphere of employment is no longer recognised.

A new, stricter interpretation of the legitimacy of aged-based discriminatory measures

by the Court may signal the starting point towards a workplace where direct

discrimination is no longer accepted practice. Through economic necessity, and the

growing demand for basic rights, Member States might be prepared to treat age-based

discrimination as equal to other grounds of discrimination. Eventually this could lead to

the full recognition of the concept of age as a protected ground, and an embracement

of the fundamental principles of equality.

In an article evaluating age discrimination law post-Seldon, Bisom-Rapp and Sargeant

reached a decisive conclusion: ‘Neither the empirically unproven aim of

intergenerational fairness nor the controversial argument that compulsory retirement

promotes employee dignity withstands close analysis. Age should be treated in the

same way as other protected characteristics; there should be no general justification

for direct age discrimination.’246 A verdict this paper strongly endorses.

245 Elaine Dewhurst, ‘The Development of EU Case-Law on Age Discrimination in Employment: ‘Will You Still Need Me? Will You Still Feed Me? When I’m Sixty-Four’’ (2013) 19 ELJ 517, 544 246 246 Susan Bisom-Rapp and Malcolm Sargeant, ‘Diverging Doctrine, Converging Outcomes: Evaluating Age Discrimination Law in the United Kingdom and the United States’ (2103) 44 Loy. U. Chi. LJ 717, 768


67

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