AGE OF RETIREMENT

Rosenbladt v Oellerking Gebaudereinigungsges mbH

Although it is against the law to discriminate on the ground of age, the Equality Act 2010 (which transposed the European equal treatment directive into domestic law), contains a number of exceptions. In Rosenbladt v Oellerking Gebaudereinigungsges mbH, the European Court of Justice (ECJ) held that a German law allowing compulsory retirement of employees when they reached pensionable age was lawful as it fulfilled a legitimate aim of government social policy.

Basic facts

Mrs Rosenbladt worked as a part-time cleaner for many years at a barracks in Germany. Her contract stated that, in accordance with a collective agreement, her employment would end either when she could claim her retirement pension or, at the latest, when she reached 65.

A German law transposing the European equal treatment directive into domestic legislation stated that it was not unlawful to dismiss an employee when they reached pensionable age.

On 14 May 2008 Mrs Rosenbladt was informed that her contract would terminate on 31 May because she had reached retirement age. She brought a claim in the Hamburg Labour Court, arguing that this constituted age discrimination.

The court referred a number of questions to the ECJ.

ECJ decision

The ECJ decided that the provision in her contract stipulating it could be terminated on the ground of age was not contrary to article 6 of the equal treatment directive. This allows for a difference of treatment on the ground of age if it can be objectively justified by a legitimate aim of social policy.

In this case, the aim of the German legislation was “based on the notion of sharing employment between the generations”. The ECJ said that terminating the contracts of older employees made it easier for younger workers to find work. At the same time the rights of older workers were protected by receiving a pension to replace the income they had lost.

This was therefore a legitimate aim which could be objectively and reasonably justified by the legal provision adopted by the government.

However, it also said that the collective agreement itself had to be reviewed by the courts in order to show that the policy in the agreement was objectively justified by a legitimate aim such as employment policy, labour market and vocational training objectives. Again, in this case, the EJC said it was.

The court therefore concluded that it is not contrary to the directive to include measures - such as automatic termination of an employee’s contract who has reached retirement age - in a collective agreement.

It also said that a collective agreement containing such a provision could be generally applied, as long as employees who have reached retirement age were not deprived of protection from other provisions conferred on them by the directive.