Most employers will be aware that it has been unlawful to discriminate on the grounds of age since 1 October 2006. The Employment Equality (Age) Regulations 2006 (now incorporated into the Equality Act 2010) essentially abolished default retirement ages.
In Fries v Lufthansa Cityline GmbH, ECJ, 5.7.17 (Case C-190/16) 1 the European Court of Justice reminded parties that, in certain limited circumstances as least, it may be lawful to implement a default retirement age provided the age limit meets an objective general interest test and is proportionate in the circumstances.
Hr. Fries worked as a pilot for Lufthansa in Germany when he was required to retire at 65. He brought proceedings arguing that such a default retirement age was not compatible with the prohibition on age discrimination, which was referred to the European Court of Justice by the German Labour Court. Lufthansa sought to justify the fixed retirement age on grounds of safety.
The ECJ held that provided a default retirement age met ‘an objective of general interest’ and observed the principle of proportionality, such a default retirement age was lawful.
In this case, the objective of establishing and maintaining a high level of aviation safety was found to be a sufficient objective of general interest. The ECJ were also satisfied that the difference in treatment based on age was a proportionate requirement that went no further than was reasonably necessary to achieve the legitimate aim. In doing so, the ECJ recognised that a pilot’s aptitude and physical capabilities diminished with age and the retirement age was necessary to ensure aviation safety.
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