Abstract
Beginning in April 2010, a major exception to the age discrimination rubric was removed from the statute book. The default retirement age (DRA) had permitted employers to retire workers at 65, thus driving the proverbial coach and horses through the anti-discrimination principle. The repeal was effective from April 6, 2011, but there was a 6 month transitional period. Such retirements could continue until October 1, 2011, providing that due notice was given before April 6, and that the worker was 65 (or the normal retirement age) before October 1, 2011 (reg.5).
This repeal will be welcomed by those approaching retirement age and arguably most in need of protection from age discrimination. The bad news for these workers is that employers may still force them to retire, although this time the employer must defend the retirement using either the standard Genuine Occupational Requirement, or (more likely) objective justification.
An interesting aspect to statutory interpretation is absorbed by the objective justification defence. Domestic courts and tribunals have been directed (by the ECJ) to interpret an employer’s defence to age discrimination according to expressed government social policy. There are two twists in this process. First, government policy appears to be fluid. Second, it appears nowadays to be somewhat different from other ECJ and Court of Appeal pronouncements on the subject of compulsory retirement. This leaves courts and tribunals with the task of scouring various government statements for a social policy, and then deciding if it can be reconciled with judicial precedent.
Drawing on the extensive legislative background, UK and ECJ case law, and observations from Canada, the United States, and Australia, this article explores and speculates when an employer may succeed in objectively justifying compulsory retirement.
This repeal will be welcomed by those approaching retirement age and arguably most in need of protection from age discrimination. The bad news for these workers is that employers may still force them to retire, although this time the employer must defend the retirement using either the standard Genuine Occupational Requirement, or (more likely) objective justification.
An interesting aspect to statutory interpretation is absorbed by the objective justification defence. Domestic courts and tribunals have been directed (by the ECJ) to interpret an employer’s defence to age discrimination according to expressed government social policy. There are two twists in this process. First, government policy appears to be fluid. Second, it appears nowadays to be somewhat different from other ECJ and Court of Appeal pronouncements on the subject of compulsory retirement. This leaves courts and tribunals with the task of scouring various government statements for a social policy, and then deciding if it can be reconciled with judicial precedent.
Drawing on the extensive legislative background, UK and ECJ case law, and observations from Canada, the United States, and Australia, this article explores and speculates when an employer may succeed in objectively justifying compulsory retirement.
| Original language | English |
|---|---|
| Pages (from-to) | 144-160 |
| Journal | Journal of Business Law |
| Volume | 2 |
| Publication status | Published - 2012 |