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Marginalising the objective justification defence in retirement cases?

Marginalising the objective justification defence in retirement cases? Purpose – The purpose of this paper is to provide an analytical review of the key jurisprudence of the European Court and to present the argument that a more conservative approach is being adopted when considering the objective justification defence in dismissals by reason of retirement. Design/methodology/approach – A review approach is adopted in the paper, with a primary focus on recent European Court decisions, whilst appreciating existing literature on the position of retirement cases. Attempts were made to draw together the evidence which suggests a shift in approach to objective justification in this context. Findings – The paper reveals 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. It is highlighted that this could have damaging practical implications by placing a much lighter burden on employers when arguing objective justification of retirement dismissals. Research limitations/implications – The paper's main limitation is that it only considers case law from the European Court, without considering the approach adopted in any of the EU member states, where the eventual approach will be decided. However, this paper provides useful analysis of the approach being adopted in the European Court which is the ultimate interpreter of EU law, whilst questioning whether it is the correct approach. Originality/value – The paper is the first to examine the shifting approach to objective justification in retirement cases. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png International Journal of Law and Management Emerald Publishing

Marginalising the objective justification defence in retirement cases?

International Journal of Law and Management , Volume 53 (5): 14 – Sep 13, 2011

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Publisher
Emerald Publishing
Copyright
Copyright © 2011 Emerald Group Publishing Limited. All rights reserved.
ISSN
1754-243X
DOI
10.1108/17542431111166359
Publisher site
See Article on Publisher Site

Abstract

Purpose – The purpose of this paper is to provide an analytical review of the key jurisprudence of the European Court and to present the argument that a more conservative approach is being adopted when considering the objective justification defence in dismissals by reason of retirement. Design/methodology/approach – A review approach is adopted in the paper, with a primary focus on recent European Court decisions, whilst appreciating existing literature on the position of retirement cases. Attempts were made to draw together the evidence which suggests a shift in approach to objective justification in this context. Findings – The paper reveals 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. It is highlighted that this could have damaging practical implications by placing a much lighter burden on employers when arguing objective justification of retirement dismissals. Research limitations/implications – The paper's main limitation is that it only considers case law from the European Court, without considering the approach adopted in any of the EU member states, where the eventual approach will be decided. However, this paper provides useful analysis of the approach being adopted in the European Court which is the ultimate interpreter of EU law, whilst questioning whether it is the correct approach. Originality/value – The paper is the first to examine the shifting approach to objective justification in retirement cases.

Journal

International Journal of Law and ManagementEmerald Publishing

Published: Sep 13, 2011

Keywords: Age discrimination; Retirement; Objective justification; Framework Directive 2000/78

References