TY - JOUR

T1 - Marginalising the objective justification defence in retirement cases?

AU - Butler, Mark

PY - 2011

Y1 - 2011

N2 - 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.

AB - 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.

KW - Age discrimination

KW - Framework Directive 2000/78

KW - Objective justification

KW - Retirement

U2 - 10.1108/17542431111166359

DO - 10.1108/17542431111166359

M3 - Journal article

VL - 53

SP - 375

EP - 388

JO - International Journal of Law and Management

JF - International Journal of Law and Management

SN - 1754-243X

IS - 5

ER -