Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social aim of labour market confidence. The use of a designated retirement age is to be contrasted with a mandatory retirement age. ‘A DRA does not require the employer to dismiss on grounds of age or retirement, but merely enables it to do so when that age is reached without risk of violating the law and being vulnerable to damages claims. The idea of a DRA is not inherently arbitrary and illegitimately discriminatory but is the making of a social choice in the light of a number of social and economic factors which point either way as to the desirability of such a measure or its actual effect upon future employment prospects.’
‘I accept the submission . . that the use of a specific age as the basis for social policy decisions reflected in the Regulations is somewhat different from use of other criteria such as race, sex, religion or sexual orientation which have either been, or have become now regarded as particularly suspect grounds . . This is not to assign age to some diminished worth in a supposed hierarchy of rights. Unlike the immutable characteristics of racial and gender identity all of us grow older each year and all of us face decisions about retirement. The different nature of discrimination on the grounds of age compared with other grounds is reflected directly in the Directive by the fact that Article 6 permits justification of direct discrimination on the grounds of age.’
Blake J considered the authorities and said: ‘In my judgment, . . the constitutional principles identified in . . Prebble . . , Hamilton, Bradley and Office of Government Commerce cases . . are as follows:
(i) The court must be astute to ensure that it does not directly or indirectly impugn or question any proceedings in Parliament in the course of judicial proceedings.
(ii) ‘Impugn or question’ extends beyond civil or criminal sanction for any statement in Parliament but includes a judicial determination as to whether a statement in Parliament is right or wrong. The Judge cannot receive evidence of what is said in Parliament for the purpose of agreeing or disagreeing with it…’
Blake J
Times 08-Oct-2009, [2009] EWHC 2336 (Admin), [2009] IRLR 1017, [2009] Pens LR 333, [2010] 1 CMLR 21, [2010] ICR 260
Bailii
Employment Equality (Age) Regulations 2006 SI 1031/2006, Council Directive 2000/78/EC
England and Wales
Citing:
See Also – The Incorporated Trustees of the National Council on Aging (Age Concern England), Regina (on the Application of) v Secretary of State for Business, Enterprise and Regulatory Reform Admn 24-Jul-2007
Age Concern challenged the implimentation of the European Directive as regards the prohibition of age discrimination. . .
ECJ Opinion – Incorporated Trustees of The National Council For Ageing v Secretary of State for Business, Enterprise and Regulatory Reform ECJ 23-Sep-2008
Europa Council Directive 2000/78/EC Article 6(1) Age discrimination – Compulsory retirement National legislation permitting employers to dismiss employees aged 65 and over if the reason of dismissal is retirement . .
ECJ Judgment – Incorporated Trustees of The National Council For Ageing v Secretary of State for Business, Enterprise and Regulatory Reform ECJ 5-Mar-2009
(Third Chamber) The trustees complained that the respondent had failed to implement the Directive, in that there remained, for example, rules allowing employers to have fixed retirement ages.
Held: The complaint failed. The Directive allowed . .
Cited – Bilka-Kaufhaus v Webers Von Hartz ECJ 13-May-1986
ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of . .
Cited – Hutter v Technische Universitat Graz ECJ 18-Jun-2009
ECJ Directive 2000/78/EC – Equal treatment in employment and occupation Age discrimination Determining the pay of contractual employees of the State Exclusion of professional experience acquired before the age of . .
Cited – Kucukdevici v Swedex GmbH ECJ 7-Jul-2007
ECJ Directive 2000/78/EC in principle non’discrimination age – National legislation on dismissal not taking into account the period of service completed before the employee reaches the age of 25 to calculate the . .
Cited – Regina v Secretary of State Employment, ex parte Equal Opportunities Commission and Another HL 4-Mar-1994
The Equal Opportunities Commission sought judicial review to test whether English employment law was in breach of EC law where threshold conditionsions for part time workers to make unfair dismissal and redundancy law claims were discriminatory.
Cited – Bartsch v Bosch und Siemens Hausgerate (BSH) Altersfursorge GmbH ECJ 23-Sep-2008
ECJ Equal treatment in employment and occupation Article 13 EC Directive 2000/78/EC Occupational pension scheme excluding the right to a pension of a spouse more than 15 years younger than the deceased former . .
Cited – Inge Nolte v Landesversicherungsanstalt Hannover ECJ 14-Dec-1995
Europa Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as meaning that persons in employment which is . .
Cited – Felix Palacios de la Villa v Cortefiel Servicios SA ECJ 15-Feb-2007
Europa Council Directive 2000/78/EC Article 6 – General principle of Community law – Age discrimination – Compulsory retirement – Direct effect – Obligation to set aside conflicting national law. . .
Cited – Seymour-Smith and Perez; Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another ECJ 9-Feb-1999
Awards made by an industrial tribunal for unfair dismissal are equivalent to pay for equal pay purposes. A system which produced a differential effect between sexes was not indirect discrimination unless the difference in treatment between men and . .
Cited – Regina v Secretary of State For Employment Ex Parte Seymour-Smith and Another (No 2) HL 17-Feb-2000
Although fewer men were affected by the two year qualifying period before becoming entitled not to be dismissed unfairly, the difference was objectively justified by the need to encourage employers to take staff on, and was not directly derived from . .
Cited – Lindorfer v Council (Staff Regulations) ECJ 30-Nov-2006
EU Appeal – Community official – Transfer of pension rights – Calculation of additional pensionable service – Equality of treatment. . .
Cited – Mangold v Helm ECJ 22-Nov-2005
ECJ Grand Chamber – Directive 1999/70/EC – Clauses 2, 5 and 8 of the Framework Agreement on fixed-term work – Directive 2000/78/EC – Article 6 – Equal treatment as regards employment and occupation – Age . .
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Bradley and Others, Regina (on the Application of) v Secretary of State for Work and Pensions Admn 21-Feb-2007
The claimant had lost his company pension and complained that the respondent had refused to follow the recommendation of the Parliamentary Commissioner for Administration that compensation should be paid.
Held: The court should not rely on . .
Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Cited – Prebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
Cited – Bartsch v Bosch und Siemens Hausgerate (BSH) Altersfursorge GmbH ECJ 23-Sep-2008
ECJ Equal treatment in employment and occupation Article 13 EC Directive 2000/78/EC Occupational pension scheme excluding the right to a pension of a spouse more than 15 years younger than the deceased former . .
Cited by:
Cited – Homer v Chief Constable of West Yorkshire Police CA 27-Apr-2010
The claimant alleged indirect age discrimination, in not having received a promotion to a post of legal adviser to the defendant. He did not have a law degree and did not want to undertake the study required which would have him acquiring the degree . .
Cited – Seldon v Clarkson Wright and Jakes SC 25-Apr-2012
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age.
Held: The matter was remitted to the Employment tribunal to see whether the . .
Cited – Kimathi and Others v Foreign and Commonwealth Office QBD 20-Dec-2017
Parliamentary privilege The claimants sought to have admitted as evidence extracts from Hansard in support of their claim for damages arising from historic claims.
Held: The court set out the authorities and made orders as to each element. . .
Lists of cited by and citing cases may be incomplete.
European, Discrimination, Employment, Human Rights
Updated: 10 November 2021; Ref: scu.375181