Age discrimination

A German state law requiring state prosecutors to retire at 65 did not breach the prohibition on age discrimination contained in the Equal Treatment Directive. However the much hoped-for clarification that this case would provide as regards employer-justified retirement ages (and particularly whether cost alone can justify discrimination) was not forthcoming and employers should be wary of placing too much reliance on its outcome.

The age-related redundancy of a long-serving employee was justified on money-saving grounds. His accelerated dismissal, which was in part motivated by a desire by save the public purse the cost of his enhanced pension should he still be employed at the age of 50, was direct age discrimination but was justified on the grounds of the employer’s wish to avoid the huge additional cost. Although not central to its decision, the EAT also questioned the orthodox view that cost alone can never constitute sufficient justification by itself.

Compulsory retirement of workers at 65 who were entitled to a pension was age discrimination - but was justified as a proportionate means of achieving the legitimate aims of offering workers a foreseeable retirement and allowing employers an element of flexible staff management. This decision of the European Court of Justice will be of interest to those employers thinking about retaining a compulsory retirement age following the abolition of the default retirement age from April 2011.

A 62-year-old store supervisor, who was made redundant, was awarded over £27,000 by a tribunal because he was subjected to age discrimination and unfairly dismissed.

The use of the word ‘younger’ in a job advertisement for a replacement for a redundant executive, despite HR advising that it was inappropriate, meant that the burden of proof shifted onto the employer. The fact that the tribunal also found there were other factors indicating a non-discriminatory explanation did not prevent the burden of proof from reversing.

In upholding the validity of the forced retirement of a partner at the age of 65, the Court of Appeal has provided important guidance on justifying age discrimination.