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Marginalising the objective justification defence in retirement cases?

Research output: Contribution to journalJournal article

Published

Journal publication date2011
JournalInternational Journal of Law and Management
Journal number5
Volume53
Number of pages14
Pages375-388
Original languageEnglish

Abstract

This Article provides an analytical review of the key jurisprudence of the Court of Justice and presents the argument that a more conservative approach is being adopted when considering the objective justification defence where the treatment being complained of is dismissal by reason of retirement. In order to question this shift in approach, focus will be on the recent decisions of Case C-411/05 Palacios de la Villa v Cortefiel Servicios SA , [2007]; Case C-388/07 The Incorporated Trustees of the National Council on Ageing (Age Concern England)v Secretary of State for Business, Enterprise and Regulatory Reform [2009], and; Case C-45/09 Rosenbladt v. Oellerking Gebäudereinigungsges. mbH. Through critical analysis it will be highlighted that the approach being adopted in retirement cases appears to be devaluing the age discrimination protections, through allowing individual, subjective reasons to justify less favourable treatment, despite the express wording of the Parent Directive precluding such an approach. This could have damaging practical implications by placing a much lighter burden on employers when arguing objective justification of retirement dismissals, which will in effect drastically reduce the age discrimination protections in this context. Such understanding of the current approach by the European Court will be vital for employers and workers alike across all 27 EU Member States when trying to understand how to manage an ageing workforce.