Dissertation LLM

LLM in Employment Law Dissertation K1210641
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KINGSTON UNIVERSITY
Despite the established principle of non-discrimination, and the growing
fiscal pressures of changing demographics across the EU, many older
workers still face compulsory retirement, a manifest form of age-based
discrimination.
Is there now an opportunity for the European courts to adopt a more
robust approach in determining the legitimate aims for direct age
discrimination provided for in Article 6(1) of the Council Directive
2000/78EC, enhancing the ‘suspect’ nature of ‘age’ and leading to a more
fundamental rights-based approach?
School: Kingston Law School
Course: Employment Law
Supervisor: Professor Gwyneth Pitt
Author: K1210641
Word count: 14,926

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Abstract
This paper will consider the justification of direct age discrimination, particularly as it
affects the older worker. It will examine the emergence of ‘age’ as a component of
discrimination law, and discuss its status as one of the ‘protected grounds’. It will
analyse the Court of Justice of the European Union’s broad acceptance of the
‘legitimate aims’ of the Members States’ measures, which provide for differences of
treatment on the grounds of age.
This paper will discuss the growing recognition of the ‘suspect’ nature of age, it will
evaluate the validity of discriminatory measures that have been recognised as
‘legitimate aims’, and explore the demographic change that is sweeping across
Europe.
This work will contend that it is now time for a new rationale, with the development of a
more robust approach to the ‘objectivity test’ and greater scrutiny of legitimacy.
It will establish that there is an opportunity for the Court to adopt a more restrictive
interpretation of Article 6(1) and thereby act as a catalyst for the removal of age-based
discrimination in the workforce across the EU, and the advancement of a more
fundamental rights based approach.

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Acknowledgements
I am extremely grateful to my supervisor Professor Gwyneth Pitt, who gave me
guidance, advice and assurance throughout the research and writing of this paper.
I would also like to thank my family for their continued support.

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Table of Contents
Abstract……………………………………………………........................................ 2
Acknowledgment……………………………………………………………………… 3
Table of Contents…………………………………………………………………….. 4
Introduction…………………………………………………………………………… 6
Chapter One
(i) The concept of ‘age’ in the context of discrimination……………….. 9
(ii) Mangold………………………………………………………………….. 15
(iii) Conclusion……………………………………………………………….. 18
Chapter Two
(i) The reaction to Mangold……………………………………………….. 19
(ii) Muted support…………………………………………………………… 20
(iii) A difference of ‘Opinion’………………………………………………… 23
(iv) The ‘Heyday’ challenge………………………………………………… 25
(v) Restating Mangold…………………………………………………….... 29
(vi) Conclusion………………………………………………………………. 33
Chapter Three
(i) The road to Seldon……………………………………………………… 34
(ii) Seldon……………………………………………………………………. 40
(iii) Evaluating intergenerational fairness………………………………… 44
(iv) Interpreting ‘dignity’…………………………………………………….. 50
(v) Conclusion……………………………………………………………….. 55
Chapter Four
(i) Changing Demographics………………………………………………. 56
(ii) Conclusion……………………………………………………………….. 59
Conclusion……………………………………………………………………………. 61

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Bibliography………………………………………………………………………….. 67

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Introduction
EU law first addressed age discrimination through Council Directive 2000/78/EC1
(hereafter referred to as ‘the Directive’), which established a general framework for
equal treatment within the workplace, and is now implemented in the UK through the
Equality Act 2010.2
Article 6(1) of the Directive permits the justification of direct age
discrimination by Member States provided the differences of treatment are ‘within the
context of national law’ and ‘objectively and reasonably justified by a legal aim’. In this
respect age is unique amongst the nine protected grounds, and age-based direct
discrimination measures have been engaged by Member States, most noticeably
through compulsory retirement policies, much to the detriment of the older worker.
The purpose of this paper is to evaluate the status of age, the implications of
judgments at the Court of Justice3
(hereafter referred to as ‘the Court’) and the UK,
and advance the possibility of an enlightened Court taking a more robust approach to
the age–based discriminatory measures of Member States.
It will contend that in exercising a more restrictive, evidence-based assessment when
determining the objective justification of legitimate aims the Court can provide a
stepping-stone to restrict occurrences of age discrimination in the workplace.
It is hoped that in creating a buttress to discriminatory rules such as compulsory
retirement, the Court will be embracing the notion of increased labor market
participation by older people that will help EU Member States meet the challenge of
demographic change. This can be achieved by the removal of mandatory retirement
rules, a greater recognition of the rights of older workers, and the enhancement of the
status of age as a protected characteristic.
1 The Council Directive (EC) 2000/78 establishing a general framework for equal treatment in employment and
occupation [2000] OJ L303
2 Equality Act 2010
3 Court of Justice of the European Union previously referred to as the European Court of Justice

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This paper will discuss the ‘suspect’ nature of age and examine the impact of the
controversial case of Mangold v Helm4
which promoted the status of age and
determined that non-discrimination of grounds of age should be ‘regarded as a general
principle of Community law’ and conflicting national law should disapplied.
It will analyse the varied reaction to Mangold in the subsequent key cases, and the
Courts’ decisions that have given its provisional support. It will also evaluate the
continued development of case law in respect of compulsory retirement measures and
in particular the ‘objectivity test’ for the justification of legitimate aims. It will explore the
foremost cases leading up to the important findings of Lady Hale in Seldon v Clarkson
Wright and Jakes.5
This paper will evaluate intergenerational fairness and dignity as identified by Lady
Hale in Seldon and argue that it will no longer be appropriate to justify retirement
measures under these headings in the UK, and become increasingly difficult for the
rest of the EU. It will examine the nature of the changing demographics of Europe and
assert that a new socio-economic strategy needs to be adopted by the Member States
to tackle the financial strain of an increasingly ageing population in tandem with the
decreasing size of the workforce.
The re-focus from compulsory retirement policies to promoting full-labour participation
can be achieved by a more robust examination of the objective justification of
‘legitimate aims’. This can be accomplished by taking a more evidence-based
approach to the ‘objective and necessary’ test and a greater recognition by the
national authorities towards strategies for maintaining older workers as part of a
diverse workforce6
, and affirming their right to engage in work.7
4 Case-C-144/04 Werner Mangold v Rudiger Helm [2005] ECR I-9981
5 Seldon v Clarkson Wright and Jakes [2012] UKSC 16 IRLR 590
6 European Commission, Europe 2020
7 Article 15(1) of the Charter of Fundamental Rights of the European Union

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The thesis will conclude that the Court has an opportunity to encourage the removal of
discriminatory age-based retirement rules, and determine a more rights based
approach to discrimination legislation within the workplace.
This paper will consider the position of age in the context of discrimination law, and
for this purpose the methodology adopted in this thesis is principally a legal-doctrinal
approach, involving close analysis of relevant case law, interpreting judgments and
clarifying any ambiguities.
The core of this paper conducts a normative evaluation, however it does include an
element of empirical research particularly in the chapter on demographic change.

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Chapter One
(i) The concept of ‘age’ in the context of discrimination
The concept of age discrimination is relatively new. Age was omitted from the list of
‘suspect’ categories in the historic Universal Declaration of Human Rights (UDHR)8
of
1948 and was relegated to ‘or other status’ in Article 14 of The European Convention
on Human Rights (ECHR).9
It was fifty years later that Article 13 of the Treaty of
Amsterdam10
empowered the Community to combat discrimination based on sex, race
or ethnic origin, religion or belief, disability, age or sexual orientation, and was
subsequently adopted into Council Directive 2000/78/EC, establishing a general
framework for equal treatment in employment and occupation. The Directive gave
expression ‘to a fundamental norm of the EU legal order, namely the general principle
of equal treatment’,11
it was a significant step firmly putting age into the arena of anti-
discrimination legislation, and was duly welcomed by many observers. Meenan
acclaimed this as the seizing of an opportunity, and considered that ‘the inclusion of
age in Article 13 and the Employment Directive may come to be regarded as
prescient, rational and absolutely of the right time.’12
Optimism was also greeted with caution; Fredman noted the limitations of the
provisions and concluded: ‘In particular, the method of categorisation of groups and
the definitions of discrimination remain problematic.’13
Whilst Article 2 of the Directive
classifies age as a fully protected ground of non-discrimination, crucially Article 6(1)
states that ‘differences of treatment on grounds of age shall not constitute
8 The Universal Declaration of Human Rights was adopted by the United Nations General Council on 10 December
1948.
9 The European Convention on Human Rights (ECHR) was drafted in 1950 and came into force in 1953.
10 The Treat of Amsterdam amending the Treaty on European Union and the Treaty establishing the European
Community [1999] OJ C340/01 came into force in 1999.
11 Colm O’Cinneide, The Evolution and Impact of the Case-Law of the Court of Justice of the European Union on
Directives 2000/43/EC and 2000/78/EC (Luxembourg: Office for Official Publications of the EU 2012) 5
12 Helen Meenan, ‘Age Discrimination in the EU and the Framework Directive’ in Malcolm Sargeant (ed), The Law on
Age Discrimination in the EU (Kluwer Law International 2008) 10
13 Sandra Fredman, ‘Equality: A New Generation?’ (2001) 30 ILJ 145, 168

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discrimination, if, within the context of national law, they are objectively and reasonably
justified by a legitimate aim, including legitimate employment policy, labour market and
vocational training objectives, and if the means of achieving that aim are appropriate
and necessary.’ As Skidmore noted on this pivotal inclusion: ‘This broad approach
allows for continued direct discrimination on the grounds of age, subject to social
policy justifications’14
which permit the Member States to derogate from the equality
norm.
It is therefore arguable that age has not been fully recognised as a human rights issue,
with the inclusion of Article 6(1) ‘a tacit acknowledgment of the difficulties of achieving
agreement between the Member States when affording age the same recognition they
accorded to race and sex.’15
Meenan considered that this was perhaps the ‘cost’ of
including age in the Framework Directive16
, and conceded it ‘has suffered in its quest
for recognition as an equality issue’.17
She believed this was due to a number of
factors, including the acceptance of age limits and traditional cut-offs used a rational
organisational tool in the field of employment; stereotypical assumptions regarding
performance, commitment and ability; and the perception that ‘age discrimination is
regarded in some quarters as less wrong than other forms of discrimination.’18
It is the contested nature of age that is at the heart of the conflict between individual
rights and economic objectives. As O’Cinneide observed: ‘In the eyes of some
commentators, age discrimination constitutes an intrinsically less serious form of
discrimination than other types of unequal treatment’ and the use of age to
14 Paul Skidmore, ‘EC Framework Directive on Equal Treatment in Employment: Towards a Comprehensive
Community Anti-Discrimination Policy?’ (2001) 20 ILJ 126, 130
15 ibid 129
16 Helen Meenan, ‘Age Equality after Employment Directive’ (2003) 10 MJECL 9, 23
17 Helen Meenan, ‘Reflecting on Age Discrimination in 2007 – the Search for Clarity and Food for Thought…’ (2007)
ERA 2 <http://www.era-comm.eu/oldoku/Adiskri/08_Age/2007-Meenan-EN.pdf> accessed 14 March 2014
18 ibid 3

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differentiate between employees is commonplace and can often be considered
rational.19
Age discrimination is not associated with historical oppression, and in the well-
documented case of Massachusetts Board of Retirement v Murgia20
the US Supreme
Court asserted that older people had not experienced ‘a history of purposeful unequal
treatment’ and therefore did not warrant a form of corrective justice. The US Supreme
Court thus determined age as ‘non-suspect’21
, and stated that ‘old age does not define
a “discrete and insular” group…in need of “extraordinary protection”… instead it was a
stage that each of us will reach if we live out our normal span.’22
It is clearly
established that age has a ‘temporal dimension, a one-way, progressive and
irreversible nature’23
and it has been argued that over the long term it all ‘evens out’. It
is this ‘dynamic nature’24
that is often cited as a central reason that age discrimination
is substantially different, and maintains an informal lower status than race or sex
discrimination.
The distinction between ‘suspect’ and ‘non-suspect’ grounds has led to ‘a
differentiation of rigour in the application of the prohibitions in general, and in the case
of age in particular’.25
The existence of a hierarchy is not disputed (although opinions
may be divided about the ‘rankings’) and it is widely accepted that the narrow scope of
the Directive has enhanced ‘a hierarchy of directives, with race and ethnic origin given
the widest reach, followed by gender discrimination, which covers employment and
social security, and trailed by the discrimination on grounds of age, religion, sexual
19 Colm O’Cinneide, ‘Age Discrimination and the European Court of Justice: EU Equality Law Comes of Age’ (2009-
10) 2 Revue des Affaires Européennes 253, 257
20
Massachusetts Board of Retirement v Murgia 427 US 307 (1976)
21 ibid at (a)
22 ibid at I
23 Csilla Kollonay-Lehoczky, ‘Who, Whom, When, How? Questions and Emerging Answers on Age Discrimination’
(2013) 11 The Equal Rights Review 69, 70
24 ibid
25 ibid 72

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orientation and disability’ [emphasis added].26
The possibility that this leaves age at
the bottom of the pile is affirmed by Recital 25 of the Directive, which accepted the role
age plays in a number of social policy contexts, stating ‘differences in treatment in
connection with age may be justified under certain circumstances and therefore
require specific provisions’ and accordingly in Article 6(1) grants Member States the
opportunity to provide legal justification for indirect and also direct age discrimination.
That age maybe subject to an objective ground for dismissal as part of a legitimate
employment policy, ‘has fed the perception that age equality is an economic labour
market issue rather than an equality issue’.27
Many had hoped for the development of ‘an individual, rights-centred approach to age
equality’28
that would recognise ‘the crucial importance of individual human rights’29
and not a minimalist approaches that enables a greater scope for use of age as an
acceptable ground for discrimination.
It is clear that ‘[t]he rationale of prohibiting age discrimination is accordingly contested’,
oscillating between reasons of economic policy and the general theory behind anti-
discrimination law and policy,30
and there is concern that the original rationales of non-
discrimination that aim to combat stereotyping and protect against ‘ageism’
(particularly for older people) are ‘in danger of playing second fiddle’31
to economic
motivations. It led a disappointingly ‘minimal’ approach with the issue of the
employment market shaping the Directive and in particular the objective exception
contained within Article 6.
26 Sandra Fredman, ‘Equality: A New Generation?’ (2001) 30 ILJ 145, 151
27 Colm O’Cinneide, ‘Comparative European Perspectives on Age Discrimination Legislation’ in Sandra Fredman and
Sarah Spencer (eds), Age as an Equality Issue (Hart Publishing 2003) 199
28 ibid 195
29 ibid 196
30 Dagmar Schiek, ‘Age Discrimination Before The ECJ – Conceptual and Theoretical Issues’ (2011) 48 CMLR 777,
778
31 ibid 779

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It might be contested that Article 6 was a realistic attempt to balance the needs of the
employers with those of employees,32
but as Schiek observed, this ‘contrast between
the ban on age discrimination and the widespread use of age to justify different
treatment in employment and social policy leads to a certain ambiguity of EU age
discrimination law.’33
In 2011 Fredman reflected: ‘The new emphasis on combating age discrimination is
not…a result of a sudden appreciation of the need for fairness, but gains its chief
emphasis from macroeconomic imperatives.’34
As recently as 2013 Sargeant still felt
that a part of the problem ‘is that age does not really seem to have been accepted as a
human rights issue as have other grounds. The justification for having measures
concerning age is essentially an economic one’.35
This paper will explore the
measures that are purported to be ‘legitimate aims’ under the umbrella of ‘employment
policy, labour market and vocational training objectives in the context of social policy
and ultimately question whether these socio/economic motives stand up to scrutiny.
It has been prescribed that the derogation permitting differences in treatment on the
grounds of age by the Member States creates opportunities for exceptions to the
principle of equality and reduces the standing of age within the sphere of employment.
For those who consider that outlawing age-discrimination in the workplace a central
aspect of a fairer and more equal society, the ‘suspect’ nature of age is not doubted,
and importantly it is this status that may provide the barrier against ‘legalised’
discrimination within the workplace.
As Duncan has stated: ‘It need hardly be said that “rational” or “objective”
discrimination is as damaging to the affected employees as that based upon simple
32 Helen Meenan, ‘Age Equality after Employment Directive’ (2003) 10 MJECL 9, 23
784
34 Sandra Fredman, Discrimination Law (2nd Edn, OUP 2011) 103
35 Malcolm Sargeant, Discrimination and the Law (Routledge 2013) 56

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prejudice’,36
although in the same article he recognised ‘that age equality, both as a
theoretical construct and in policy application, is highly problematic, especially for
confronting the age discrimination that affects older people’.37
This paper will consider the relevant case law subsequent to the Directive, focusing on
the ‘legitimate aims’ that have been introduced by the Member States in order to justify
measures that incorporate direct age discrimination within the workplace.
The central point of this paper is age discrimination as it affects the older worker, the
cases that will be evaluated will primarily concern compulsory retirement legislation
within the EU. It will look at the more recent UK Court decision in Seldon and discuss
the validity of the ‘aims’ as identified by Lady Hale and contend that they are at the
very least problematic.
This may create a potential pathway for a more restrictive approach, which could yet
lead to the greater enhancement of fundamental rights for the older, and indeed all the
employees.
Skidmore declared: ‘In the field of labour law covered by Article 6(1) it is to be hoped
the Court of Justice will be will be tough in assessing the social policy necessity of
measures which discriminate on grounds of age and sex’.38
In the following chapters
this paper will appraise the significant decisions made by the Court in the emerging
and controversial field of case law of age discrimination, and conclude that his
optimism may have been misplaced, but there is still hope for change.
36 Colin Duncan, ‘The dangers and limitations of equality agendas as means for tackling old-age prejudice’ (2008) 28
Ageing and Society 1137 <http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=2345872>
accessed 17 March 2014
37 ibid 1134
38 Paul Skidmore, ‘EC Framework Directive on Equal Treatment in Employment: Towards a Comprehensive
Community Anti-Discrimination Policy?’ (2001) 20 ILJ 126, 130

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(ii) Mangold
The first case before the Court based on Article 6 of the Directive was Mangold v
Helm39
in 2005. A German law removing restrictions on the duration and number of
fixed-term contracts that could be entered into when an employee was over 52 years
old was challenged as unjustified age discrimination.
This case was of considerable interest on several levels. Firstly, the Court had to
consider whether such an exception to the principle of non-discrimination was justified.
In order to comply with Article 6(1) the measure had to be seen as ‘objectively and
reasonably justified by a legitimate aim’ and that ‘the means of achieving that aim are
appropriate and necessary’.
The German Government argued the purpose of the law was to encourage the
vocational integration of unemployed (older) workers, and the Court held that the
‘legitimacy of such a public-interest objective cannot reasonably be thrown in
doubt’40
and that an objective of that kind must therefore, as a rule, be regarded as
‘objectively and reasonably’ justified as provided for by the first subparagraph of Article
6(1) of Directive 2000/78.41
Article 6(1) provided three examples of justifiable differences of treatment on the
grounds of age, this list in non-exhaustive and attempts to provide some clarity,
although the precise meaning of the term ‘legitimate aim’ remains unclear.
Nevertheless the Court has found no difficulty in viewing the purpose of an aim as
legitimate within the context of Article 6(1), and although prima facie this would appear
to be the correct interpretation, some observers understandably felt alarm at the
39 Case C-144/04 Werner Mangold v Rudiger Helm [2005] ECR I-9981
40 ibid, para 60
41 ibid, para 61

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Court’s perceived ‘willingness to allow economic imperative to interfere with the
principle of equal treatment’.42
In considering the next ‘hurdle’ the Court decided that the blanket nature of the
exception for older workers went beyond what is appropriate and necessary in order to
attain the objective pursued.43
In concluding that the measure did not pass the
proportionality test, it made express reference to the gender equality case Lommers,44
‘thereby indicating that the objective justification test will be applied to age in a similar
manner as it is applied to other discrimination grounds’.45
This established the pattern
in subsequent age discrimination cases, whereby the Court generally adopted a broad
acceptance policy in relation to the ‘legitimate goals’, but endorsed a stricter approach
to the ‘proportionate’ test of in deciding if the measure was considered ‘appropriate
and necessary’.
A further and especially important part of the decision in Mangold can be read in the
final paragraphs of the judgment. The Court referred to Article 1 of the Directive and
stated that the sole purpose of the directive is ‘to lay down a general framework for
combating discrimination on the grounds of religion or belief, disability, age or sexual
orientation’46
and the source of this underlying principle of prohibition can be found in
the third and fourth recitals in the preamble to the directive (which are concerned with
gender equality rights; and other international agreements on human rights), as well as
‘the constitutional traditions common to the Member States.’47
It went on to say that
the ‘principle of non-discrimination on grounds of age must thus be regarded as a
42 Susan Bisom-Rapp and Malcolm Sargeant, ‘Diverging Doctrine, Converging Outcomes: Evaluating age
Discrimination Law in the United Kingdom and the United State (2013) 44 Loyola University Chicago Law Journal
717, 746
43 Mangold, para 65
44 Case C-476/99 H. Lommers v Minister van Landbouw, Natuurbeheer en Visserij [2002] ECR I-2891
46 Mangold, para 74
47 ibid, para 74

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general principle of Community law’48
and concluded that in order to give full effect to
the principle of ‘non-discrimination in respect of age’ conflicting national law should be
disapplied, even when the directive had not yet become binding to the Member State
concerned.49
This was a very significant, and in many ways, bold ruling. It elevated the status of age
and caused alarm amongst the Member States, many of who had envisaged that
making use of age-based distinctions would be largely unopposed in the Court. There
was also much debate amongst observers, and the pervading view of many was that
the Court had gone too far too soon.
In its decision the Court had sidestepped the issue that the legislation under
consideration arose before the directive came into force in Germany, it recognised that
prohibition of age discrimination was a fundamental aspect of the general equal
treatment principle, and it obligated national courts to set aside conflicting provisions.
Equally important for the purposes of this paper is that it established ‘the status of age-
based distinctions as ‘suspect’ criteria whose use in the context of employment and
occupation must be shown to satisfy the exacting requirements of the standard
objective justification test’.50
As Dewhurst observed: ‘It is really at this stage that the decisions of the Court of
Justice become more interesting, as it is here that the principle of equal treatment on
the grounds of age comes into conflict directly with the economic policies of the
Member States.’51
O’Cinneide noted that, ‘some commentators have argued that the limited scope of
protection offered against age discrimination under the Directive, in particular the
48 ibid, para 75
49 ibid, para78
51 Elaine Dewhurst, ‘The Development of EU Case-Law on Age Discrimination in Employment: ‘Will You Still Need
Me? Will You Still Feed Me? When I’m Sixty-Four’’ (2013) 19 ELJ 517, 529

18
potential for direct age discrimination to be objectively justified under Article 6(1) and
the lack of protection outside of the field of employment and occupation, means that
age should not be seen as covered by the general principle of equal treatment.’
However Mangold had established that non-discrimination on grounds of age was
aligned to the broader principle of equal treatment and confirmed its ‘suspect’ nature.
Mangold was indeed a seminal, and in many ways a controversial case.
(iii) Conclusion
Age discrimination is a new concept that was formally recognised in the Directive,
however it is clear that the workings of Article 6 have a diluting effect on its status
amongst the protected grounds. This paper will consider the impact of Article 6(1),
and in particular the Court’s assessment of the ‘legitimate aim’ requirement of the
‘objective justification’ test.
Mangold might be considered a courageous attempt by the Court to reinforce the
position of age within the ambit of discrimination law, but it faced considerable criticism
from various commentators and Member States who felt strongly that it had
overstepped its mark.

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Chapter Two
(i) The reaction to Mangold
Kilpatrick describes the Court’s decision in Mangold as ‘an unexpected and
controversial leap into the constitutional unknown’. She identifies two key issues; firstly
the Court had ‘uncovered’ a general principle of non-discrimination on the basis of
age, placing it at the heart of its judgment; and secondly the Court, in reasoning that
this new principle was supreme, determined national courts were obliged to disapply
any national law that was in conflict with it.52
The implication of the judgment in Mangold resulted in considerable discussion and
criticism, arguing this decision created an extension beyond the original conception
intended and questioning the formulations upon which the Court had founded this
principle.53
It led to a ‘sustained backlash’ from law academics as well as some
Advocates General54
who maintained that ‘the general principle of equal treatment was
too uncertain a legal concept to be applied in the manner that the Court had done in
Mangold’.55
In the case of Lindorfer56
AG Jacobs suggested in his Opinion that age
should not be considered the equivalent of gender discrimination: ‘In Community law,
prohibition of age discrimination is not only set about with far more numerous provisos
and limitations than is sex discrimination, it is also a much more recent
phenomenon.’57
This view was expressed before the judgment in Mangold, and
Lindorfer was subsequently decided purely on the grounds of sex discrimination.
52 Claire Kilpatrick, ‘The ECJ and Labour Law: A 2008 Retrospective’ (2009) 38 ILJ 180, 186
53 Elaine Dewhurst, ‘The Development of EU Case-Law on Age Discrimination in Employment: ‘Will You Still Need
Me? Will You Still Feed Me? When I’m Sixty-Four’’ (2013) 19 ELJ 517, 524
54 Claire Kilpatrick, ‘The Court of Justice and Labour Law in 2010: A New EU Discrimination Law Architecture’ (2011)
40 ILJ 280, 284
10) 2 Revue des Affaires Européennes 253, 268-269
56 Case C-227/04 P Maria-Luise Lindorfer v Council of the European Union [2007] ECR I-06767
57 Case C-227/04 P Maria-Luise Lindorfer v Council of the European Union [2007] ECR I-06767, Opinion of AG
Jacobs, para 87

20
The second Opinion in Lindorfer was delivered in the light of Mangold by AG
Sharpston, who reiterated ‘the prohibition of age discrimination should, by both its very
nature and because of its history, be interpreted and applied less rigorously than the
prohibition of sex discrimination’58
but clarified that she was not ‘persuaded that the
judgment in Mangold affects the analysis of the present case in any significant way’.59
In the disability case of Chacon Navas60
AG Geelhoed considered in his Opinion that
Article 13 should not be used ‘as a lever to correct…the decisions made by the
member States in the exercise of powers which they – still – retain.’61
He went on to
point out that that the legislature was required to ‘make painful, if not tragic choices
when weighing up the interests in question, such as the rights of disabled or older
workers versus the flexible operations of the labour market or an increase in the level
of participation of older workers.’62
The conviction of many observers that the Court had exceeded its authority in
Mangold continued to be voiced in a case concerning the compatibility of a compulsory
retirement provision in Spain; Felix Palacios.63
(ii) Muted support
In his Opinion in Palacios AG Mazak made it clear that he felt that the Court had over-
reached itself in Mangold. Agreeing with AG Geelhold’s view in Nachos and
suggesting ‘a rather restrained interpretation’64
he reasoned that ‘prohibition is of a
specific nature in that age as a criterion is a point on a scale and that, therefore age
58 Lindorfer, Opinion of AG Sharpston, para 51
59 ibid, para 51
60 Case C-13/05 Sonia Chacon Navas v Eurest Colectividades SA [2006] ECR I-06467
61 Case C-13/05 Sonia Chacon Navas v Eurest Colectividades SA [2006] ECR I-06467, Opinion of AG Geelhoed,
para 54
62 ibid, para 55
63 Case C-411/05 Felix Palacios de la Villa v Cortefiel Servicios SA [2007] I-08531
64 Case C-411/05 Felix Palacios de la Villa v Cortefiel Servicios SA [2007] I-08531, Opinion of AG Mazak, para 58

21
discrimination may be graduated.’65
It required ‘complex and subtle assessment’ and
age-related distinctions were already commonplace in social and economic policies.66
As such, he argued age should be distinguished form other forms of discrimination.
He urged for the Directive to be given a cautious interpretation, expressing his concern
by stating somewhat dramatically, that it would otherwise be ‘very problematic to have
this Sword of Damocles hanging over all national provisions laying down retirement
ages’.67
He continued his criticism, commenting that from the inference of the Court in
Mangold ‘[o]ne could say that the general principle of equality potentially implies a
prohibition of discrimination on any ground which may be deemed unacceptable.’68
Despite the urgent nature of the declarations in AG Mazak’s Opinion, the Court largely
avoided the controversial reasoning in Mangold and focussed on simply applying the
Directive. It concluded the compulsory retirement measure was objectively and
reasonably justified by the legitimate aim of ‘seeking to promote better access to
employment, by means of better distribution of work between the generations’.69
Whilst
stating the importance that such measures ‘do not go beyond what is appropriate and
necessary’,70
it concluded that in this context they were not unreasonable.71
In making its decision the Court had noted that the measure in question took account
of pension entitlements, the age of employees and the existence of collective
agreements, and ‘re-affirmed the rigorous nature…set out in the Directive’72
whilst
acknowledging the difficulty associated with the issue of retirement age, and clearly
65 ibid, para 61
66 ibid, para 62
67 ibid, para 64
68 Palacios, para 93
69 ibid, para 53
70 ibid, para 71
71 ibid, para 72

22
granted member States a generous margin of discretion in this area of employment
policy.
This margin of discretion did indeed appear to be generous with the implication that
costs alone might be considered ‘legitimate aims’. It was noted that national
authorities could choose these aims ‘on the basis of political, economic, social,
demographic and/or budgetary considerations’.73
Thus the Court in Palacios had rejected the criticism made by AG Mazak that age
should be treated differently, and re-affirmed the substance of the age discrimination
provisions of the Directive as held in Mangold. Importantly it had determined that
employment legislation and the resulting rules on retirement were subject to the age
provisions within the Directive. In reference to recital 14 in the preamble, which states
that: ‘This Directive shall be without prejudice to national provisions laying down
retirement ages’74
the Court determined that the Directive did apply to national
measures ‘governing the conditions for termination of employment contracts’ when the
retirement age had been reached.75
The Court also emphasised that national measures based on age would be required to
meet the standards of the objective justification test, as it was applied in other areas
discrimination law.76
However it choose not to address the link between the principle of equal treatment and
age discrimination, and although it largely restated the message at Mangold it did so at
the expense of an ever expanding rationale for age-based discrimination measures.
This left an opportunity for the Court to have its first head-on encounter with the
constitutional reasoning in Mangold77
in the case of Birgit Bartsch.78
74 Recital 14 in the preamble to the Directive 2000/78/EC
76 ibid, para 71

23
(iii) A difference of ‘Opinion’
In Palacios AG Mazak had made his views clear, and stated that the ‘approach
adopted by the Court in Mangold has received serious criticism from academia, the
media and also from most of the parties to the present proceedings…’79
However it did
it receive some much need support from the Opinion of AG Sharpston in Bartsch.
The case concerned an ‘age-gap’ clause, which provided that the employer would not
make payments to a deceased employees husband/wife if they were more than 15
years younger than their partner. Mrs. Bartsch was 21-years younger than her
deceased husband and claimed this clause violated the principle of equal treatment.
This was a case that occurred before the period of transposition for the Directive had
expired in Germany, therefore it did not apply and the court subsequently did not
analyze it under the Directive.
The issue of ‘Mangold and its progeny’80
was nonetheless, discussed extensively by
AG Sharpston in her Opinion. She held ‘that discrimination on the grounds of age had
always been precluded by the general principle of equality’81
and she considered how
the Court might interpret Mangold in future. AG Sharpston was conscious that in four
previous cases the Court had not reviewed or indeed mentioned the Mangold decision
with respect to the existence of the general principle prohibiting age discrimination82
and accordingly she endeavoured to distinguish it. Without looking ‘to establish a
sharp boundary between a constitutional principle and an employment regulation
based on ordinary law’83
she opined that an emerging consensus now existed that age
78 Case C-427/06 Birgit Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH [2008] I-07245
79 Case C-411/05 Felix Palacios de la Villa v Cortefiel Servicios SA [2007] I-08531, Opinion of AG Mazak, para 83
80 Case C-427/06 Birgit Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH [2008] ECR I-7245,
Opinion of AG Sharpston, paras 27-28
81 ibid, para 34
82 ibid, para 37
83 Deborah Mabbett, ‘Age Discrimination in Law and Policy: How the Equal Treatment Directive Affects National
Welfare States’ in Malcolm Ross and Yuri Borgmann-Prebil (eds), Promotiing Solidarity in the European Union (OUP,
2010) 204

24
discrimination should be unlawful, and the Court had been correct in Mangold to treat
the principle of non-discrimination on the grounds of age as an aspect of the general
principle of equal treatment.84
In support of the recent developments in Mangold she
maintained that it is ‘precisely because the general principle of equality has now been
recognised also to include equality of treatment irrespective of age that an
enabling legislative provision such as Article 13 EC becomes necessary and is duly
used as the basis for detailed legislative intervention.’85
In a short-judgment the Court decided that the death of Mr. Bartsch occurred before
the transposition period had expired and did not fall within the scope of Community
law.86
However it still took the opportunity to reiterate Mangold, as AG Sharpston
affirmed that:
having identified that the general principle of equality includes a prohibition on
age discrimination, the Court first reminded itself of its duty to “provide all the
criteria of interpretation needed by the national court to determine whether
[national] rules are compatible with such a principle” where [those] rules fall
within the scope of Community law.87
The Court had ‘signalled its intent to continue to adhere to the full scope of the
Mangold decision’88
whilst reassuring some critics by confirming its impact was
restricted to issues that fell within the general scope of Community law.
As the case law developed, a certain ambiguity emerged. This emerging contrast of a
ban on age discrimination and the commonplace use of age to justify different
treatment in social and employment policy was discussed by Schiek. She noted that
84 Colm O’Cinneide, The Evolution and Impact of the Case-Law of the Court of Justice of the European Union on
Directives 2000/43/EC and 2000/78/EC (Luxembourg: Office for Official Publications of the EU 2012) 19
85 Bartsch, Opinion of AG Sharpston, para 50
86 Bartsch, para 17
87 ibid, para 71
88 Colm O’Cinneide ‘Age Discrimination and the European Court of Justice: EU Equality Law Comes of Age’ (2009-

25
non-discrimination EU law is generally operated on a ‘closed-list’ basis and direct
discrimination can only be based on specific exemptions.89
However the general
principle of equal treatment appears to accord a lower level of protection, requiring that
‘similar situations shall not be treated differently unless different treatment is
objectively justified’,90
with EU law on age discrimination posited between the two. The
difference between these two standards of justification was to be acknowledged by the
Court in Age Concern England,91
a case of particular importance in the UK.
(iv) The ‘Heyday’ Challenge
In the UK the pressure group Age Concern92
(through a subsidiary membership
company called Heyday) challenged the compatibility of the Employment Equality
(Age) Regulations 2006,93
which implemented the Directive into the UK, and permitted
employers to justify direct discrimination in setting a ‘default’ retirement age of 65.
The UK High Court referred three main issues to the Court for consideration: whether
the Directive applied to the default retirement; whether the general justification defence
for direct discrimination (in Regulation 3) was compatible with the Directive; and
whether any practical difference existed between the objective justification tests for
indirect discrimination in Article 2(2)(b)(i) and the defence against age discrimination
as permitted in Article 6(1). The High Court did not invite justification for compulsory
784
90 Joined Cases 117/76 and 16/77, Ruckdeschel v. Hauptzollamt Hamburg-St. Annen [1977] ECR 1753, para 7
91 Case C-388/07 R (Incorporated Trustees of the National Court on Ageing (Age Concern England) v Secretary of
State for Business, Enterprise and Regulatory Reform [2009] ECR I-01569
7
92 Age Concern merged with Help the Aged and on 19 April 2010 became Age UK
93 Employment Equality (Age) Regulations 2006 (SI2006/1031)

26
retirement but was ‘in effect asking the Court to clarify the scope of the law but not to
evaluate its substantive application’.94
In his Opinion AG Mazak repeated his earlier views in Palacios, asserting that
‘Age is not by nature a “suspect ground”, at least not so much as for example race or
or sex…age is fluid as a criterion’.95
Referring to Article 6(1) he stated: ‘It is obviously
intended to enable Member States to retain age-based employment practices and to
set or preserve age limits in so far as they are justified by a legitimate employment or
social policy aim.’96
He argued that in relation to Article 6(1) ‘the possibilities under the
directive of justifying differences of treatment based on age are more extensive than
those based on the other grounds mentioned in Article 1 of the directive.’97
and as
such the application of the objective justification test should be exercised in a less
demanding manner than in other contexts. AG Mazak went to conclude that permitting
employers to retire employees aged 65 could in principle, be justified.
The Court held that the Directive did apply to the provisions, regardless of recital 14 of
the preamble, repeating the view stated in Palacios. The UK Government had cited the
workplace management needs of employers as justification, which Age Concern had
contended was not specifically listed in the examples laid out in the text of Article 6(1).
The Court decided that ‘[t]he transposition of a directive into domestic law does not
moreover always require that its provision be incorporated formally in express, specific
legislation.’98
If the basis of the derogation was apparent from a wider legislative
context, it did not require a specific list. It indicated that the social aim of the Member
94 Deborah Mabbett, ‘Age Discrimination in Law and Policy: How the Equal Treatment Directive Affects National
Welfare States’ in Malcolm Ross and Yuri Borgmann-Prebil (eds), Promotiing Solidarity in the European Union (OUP,
2010) 205
State for Business, Enterprise and Regulatory Reform [2009] ICR 1080, Opinion of AG Mazak, para 74
96 ibid, para 75
97 ibid, para 76
State for Business, Enterprise and Regulatory Reform [2009] ICR 1080, [42]

27
State could be indentified from its general context ‘including by recourse to official
documents’.99
Regarding the ‘legitimate’ aims required to justify direct discrimination, the Court
referred to Article 6(1) of the Directive’s social policy aims and concluded that by ‘their
public interest nature, those legitimate aims are distinguishable from purely individual
reasons particular to the employer’s situation, such as cost reduction or improving
competitiveness, although it cannot be ruled out that a national rule may recognise, in
the pursuit of those legitimate aims, a certain degree of flexibility for employers.’100
This clearly indicated that the intention of the policy should specifically be to purport
the advancement of public interest.
The Court considered the UK legislation could in principle be justified, and referred the
matter to the national court for determination. Unlike Palacios, in this case age was the
sole criteria, and Member States benefited from ‘a broad discretion in matters of social
policy’,101
which caused consternation amongst observers who feared it might ‘herald
less searching scrutiny of national legislation endorsing age discrimination in pursuit of
wider labour market objectives.’102
However, despite this shift in emphasis the Court again manifestly rejected AG
Mazak’s notion that age discrimination should be considered as ‘non-suspect’.
Importantly it maintained that the broad discretion enjoyed by the Member States:
cannot have the effect of frustrating the implementation of the principle of
non-discrimination on grounds of age. Mere generalisations concerning
the capacity of a specific measure to contribute to employment policy,
labour market or vocational training objectives are not enough to show that
the aim of that measure is capable of justifying derogation from that
99 ibid [57]
100 ibid [46]
101 ibid [65]

28
principle …103
It continued by citing Seymour-Smith and Perez [1999], the landmark case on
qualifying periods of work, which had reached the same conclusion.104
It stressed that Article 6(1) imposed on the Member States ‘the burden of establishing
to a high standard of proof the legitimacy of the aim relied on as a justification.’105
Significantly the Court had elucidated that age discrimination is to be treated in a
similar manner to other forms of discrimination, and the objective justification test
should be carried out with the same exactness, whilst acknowledging the specific
nature of age and the greater possibilities of an age-based justification.
The concluding status of age discrimination following Age Concern was summed up
succinctly by O’Cinneide: ‘Age is thus treated as both similar and different to other
discrimination grounds: it is treated as a ‘suspect’ category which warrants the
rigorous application of the objective justification test, but nevertheless the special
nature of age and the potential for age-based distinctions to serve rational ends is also
factored into the application of this test.’106
When the case returned to the UK the High Court107
decided the ‘default’ retirement
age (DRA) was lawful, although Blake J recognised the ‘very substantial weight’108
of
the arguments put forward by the Commission and Age UK. The Government had
State for Business, Enterprise and Regulatory Reform [2009] ICR 1080, para 51
104 Case C-167/97 R v Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez (1999)
ECR I-00623, paras 75-76
State for Business, Enterprise and Regulatory Reform [2009] ICR 1080, para 67
106 Colm O’Cinneide ‘Age Discrimination and the European Court of Justice: EU Equality Law Comes of Age’ (2009-
107 R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336
(Admin)
108 ibid [115]

29
already brought forward its review into the DRA, and it was subsequently abolished
with effect from 6 April 2011, subject to transitional provisions).109
It is also relevant to this paper that Blake J also offered guidance on the legitimacy on
social policy measures ‘within the context of national law’ as expressed in Article 6(1)
and concluded that ‘such concerns are discernable from the legislative background to
the case, including the process of consultation and public debate.’110
This emphasised
the holistic nature of social policy as a tool of government and not as an individual
business aim, but expanded the potential scope of the state in proposing that
provisions did not require formal expression to be determined as legitimate.
(v) Restating Mangold
Seda Kucukdeveci111
concerned German legislation that determined minimum notice
periods for dismissal, which disregarded periods of service before the age of 18. When
the claimant was dismissed after 10 years employment, aged 28 and received notice
calculated on three years service she claimed this was illegal age discrimination.
The Court was asked if the German law infringed the Community law prohibiting age
discrimination, and if the law could be objectively justified
In the Opinion AG Bot looked to Age Concern, which had stated the ‘public interest
nature’ of a legitimate aim as distinguishable from purely individual reasons. He
discerned that the ‘flexibility for employers’ could not constitute a legitimate aim in
itself, and somewhat boldly asserted that the ‘public interest nature’ was absent from
the German provision and thus does not pursue a legitimate aim.112
109 The Employment Equality (Repeal of Retirement Age Provisions) Regulations [2011] SI 2011/1069
(Admin) [90]
111 Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG [2010] ECR I-00365
112 Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG [2010] ECR I-00365, Opinion of AG Bot, para 47

30
The Advocate General also recognised that the Directive’s provisions were
‘indissociably linked’ to the general principle of equal treatment.113
The German court maintained that the ‘greater flexibility’ of shorter notice periods
would facilitate the recruitment of younger workers and as such constituted an
employment and labour policy objective. The Court recognised this aim as falling
within Article 6(1) but was not persuaded that it was an appropriate and necessary
measure. It argued that the legislation affected employees ‘unequally’114
and was
therefore not justified.
The Court repeated the basis of the general principle and defiantly referred to Mangold
when stating:
the Court has held that that directive does not itself lay down the principle of
equal treatment in the field of employment and occupation, which derives from
various international instruments and from the constitutional traditions
common to the Member States, but has the sole purpose of laying down, in
that field, a general framework for combating discrimination on various
grounds including age.115
It continued in its support for the ‘Mangold manifesto’, reaffirming it is ‘for the national
court, hearing a dispute involving the principle of non-discrimination on grounds of age
as given expression in Directive 2000/78, to provide, within the limits of its jurisdiction,
the legal protection which individuals derive from European Union law and to ensure
the full effectiveness of that law, disapplying if need be any provision of national
legislation contrary to that principle.’116
113 ibid, para 34
114 Kücükdeveci, para 42
115 ibid, para 20
116 ibid, para 51

31
The Court had thus reaffirmed the principle of age non-discrimination as a general
principle of EU law, which is given expression in the Directive and should be given full
effect by the national courts.
Despite this apparent expansion of the scope of EU law following Mangold, the Court
was not tempted to overrule the ‘indirect effect’ and stressed that ‘a directive cannot of
itself impose obligations on an individual and cannot therefore be relied on as such
against an individual’.117
There was considerable post-case discussion by observers
and academics it would appear that the basic position that directives are incapable of
horizontal effect remains intact.
Importantly, the Court also recognised ‘a new link between the EU Charter of
Fundamental Rights and the general principle of age discrimination’118
In stating: ‘It
should also be noted that Article 6(1) TEU provides that the Charter of Fundamental
Rights of the European Union is to have the same legal value as the Treaties. Under
Article 21(1) of the charter, ‘[a]ny discrimination based on…age…shall be
prohibited.’119
This judgment ‘provides a clear textual basis for the Court’s finding that the general
principle of equal treatment extends to cover age along with the other non-
discrimination grounds.’120
Whilst the Court only used the Charter of Fundamental
Rights of the European Union121
(EUCFR) ‘as a supplementary support’122
this
reaffirmed the ‘suspect’ nature of age and AG Bot concluded his Opinion by
117 ibid, para 46
118 Claire Kilpatrick, ‘The Court of Justice and Labour Law in 2010: A New EU Discrimination Law Architecture’
(2011) 40 ILJ 280, 285
119
Kücükdeveci, para 22
120 Colm O’Cinneide, ‘The Evolution and Impact of the Case-Law of the Court of Justice of the European Union on
Directives 2000/43/EC and 2000/78/EC’ (November 2012) 21
<http://www.non-discrimination.net/content/media/Evolution%20and%20Impact%20EN%20FINAL.pdf> accessed 24
March 2014
121
European Union, Charter of Fundamental Rights of the European Union (2000/C 364/01)
(2011) 40 ILJ 280, 285

32
commenting on the potential increase in proceedings between private persons if the
EUCFR ‘becomes legally binding in the future’.123
To some commentators Kucukdeveci was considered a ‘full-blooded affirmation of
Mangold’,124
this may appear an over-statement, but the Court had firmly asserted the
continued existence of the general principle of disallowing age discrimination.
Of particular note for the purposes of this paper was the continued contention that
Member States enjoy ‘a broad discretion in the choice of the measures capable of
achieving their objectives in the field of social and employment policy.’125
It was clear
that legitimate aims were readily viewed as complying with the social policies outlined
in Article 6(1). Despite what may be considered the encouraging viewpoint expressed
by AG Bot that the policy objectives in question did not pursue any public goals, and
his belief that flexibility granted to employers did not in itself constitute a legitimate
objective.126
The Court can be seen to take ‘a more generous approach, at times
displaying a limited degree of sensitivity to the realities of age discrimination.’127
Whilst
it may be reserving a stricter scrutiny in applying the proportionality test on a case-by-
case basis, the overarching effect of the leniency granted to age discrimination in
Article 6(1) has led to the Court accepting employment-related justifications,
sometimes with surprising ease.128
Further analysis will indicate that this pattern
123 Kücükdeveci Opinion of AG Bot, para 90. [The charter became legally binding when the treaty of Lisbon came into
force in December 2009. Britain (along with Poland) obtained an ‘opt-out’ but the ECJ has subsequently ruled that
this did not exempt the UK from the obligation to comply with the provisions of the charter and the precise status of
the Charter’s effect in UK law remains a matter of debate.]
(2011) 40 ILJ 280, 286
125 Kucukdeveci, para 38
126 Kücükdeveci Opinion of AG Bot, para 47
793
128 ibid 796

33
continues in the relevant EU case law prior to the seminal case of Seldon v Clarkson
Wright and Jakes.129
(vi) Conclusion
Mangold faced considerable criticism on many fronts, not least from some of the
Advocates General in the cases of Palacios, Lindorfer and Age Concern. However the
Court continued to treat age as a ‘suspect’ ground, whilst conceding to some
limitations of its scope of application.
Despite an element of retracement from the Mangold mantra, the spirit of its ruling
remained. In Kucukderveci the Court continued to acknowledged the non-
discrimination principle on the grounds of age as general principle of EU law, to which
the Directive gives ‘specific expression’.130
In upholding this principle the Court maintained a strict interpretation of the
‘appropriate and necessary’ requirement of Article 6(1). However, in what maybe
viewed as a concession to the concerns of Member States post-Mangold, the Court
deemed an ever-widening range of age-based discriminatory measures as potentially
legitimate aims.
129 Seldon v Clarkson Wright and Jakes [2012] UKSC 16 IRLR 590
130 Kücükdeveci, para 21

34
Chapter Three
(i) The road to Seldon
Two cases gave their rulings on the same day, Colin Wolf131
and Domenica
Petersen132
, both concerning the working age limits in professions, those of fireman
and dentists respectively. In both cases the notion of encouraging intergenerational
fairness through compulsory retirement was recognised.
In Petersen a German law set a maximum age of 68 for recruiting panel dentists into
their national health service, here the Court identified as legitimate objectives the two
aims of protecting the patients’ health and the financial viability of the health, having
assessed these under Article 2(5) of the Directive.133
The Court also held that the
German Government had the alternative defence of ensuring a fair distribution of
employment among the generations, which was seen to promote intergenerational
fairness, as an ‘appropriate and necessary’ measure under Article 6(1).
Wolf also concerned a German law, this time a rule that restricted applications to the
fire service to those aged under 30. The case was referred to the Court where
ultimately resolved the legislation to be lawful under the ‘genuine occupational
requirement’ defence within Article 4(1) and in doing so declared ‘there is no need to
examine whether it could be justified under Article 6(1) of the Directive.’134
Nevertheless in his Opinion AG Bot had viewed that ‘the aim of creating a balanced
age structure in order to ensure the operational capacity and proper functioning of the
131 Case C-229/08 Colin Wolf v Stadt Frankfurt am Main [2010] ECR I-00001
132 Case C-341/08 Domnica Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe [2010]
ECR I-00047
133 Article 2(5) states: This Directive shall be without prejudice to measures laid down by national law which, in a
democratic society, are necessary for public security, for the maintenance of public order and the prevention of
criminal offences, for the protection of health and for the protection of the rights and freedoms of others.
134 Case C-229/08 Colin Wolf v Stadt Frankfurt am Main [2010] ECR I-00001, para 45

35
fire service constitutes an aim relating to employment policy which is ‘legitimate’ within
the meaning of Article 6(1) of Directive 2000/78.’135
Both cases in their different ways, had acknowledged the legitimacy of championing
youth employment through restricting the employment opportunities of older workers,
and had done so without question. However on the issue of capability the cases
appeared to diverge. In Wolf the Court reviewed a substantial amount of evidence
produced by the German Government before accepting that age discriminatory rules
are capable of being justified by age-related decline in performance. Some observers
considered the decision a generous interpretation of Article 4(1) but the scrutiny of
fact-based evidence raised hopes of a more stringent examination of ‘legitimate aims’
in future cases.
In contrast to the evidence-based finding in Wolf, in the Petersen case the Court had
seemingly accepted that the competency of dentists was based on a ‘general
experience’136
that performance levels drop after a certain age (68).
This objective was found to be incompatible as the age limit did not apply to dentists in
the private sector. The judgment was prepared to accept that maintaining financial
stability of the healthcare service was a proportionate means of a legitimate aim in
pursuit of protecting public health, but ultimately the measure was found to be
inconsistent (and therefore not proportionate).
This signified a somewhat relaxed acceptance of age related performance based on
‘assumptions’ rather than on any evidence-based findings. The Court also continued to
show a willingness to grant a wide margin of discretion, on this occasion accepting ‘an
additional justification’137
of intergenerational fairness, which aimed to ‘ensure a
135 Case C-229/08 Colin Wolf v Stadt Frankfurt am Main [2010] ECR I-00001, Opinion of AG Bot, para 42
136 Petersen, para 30 (1)
787

36
balanced sharing of burdens between the generations’.138
These were considered
disappointing aspects of Petersen. The Court had adopted ‘a rather loose standard of
scrutiny for judging age-related retirement policies motivated by employment market
pressures,’ reminiscent of Palacios.139
Palacios had already established that the encouragement of recruitment through
compulsory retirement was a legitimate aim, although the Court had taken into account
the entitlement to financial compensation by way of a pension. A supposed show of
‘concern’ for the disposition of older workers was taken to a new level in Gisela
Rosenbladt.140
This was another case that arose from the retirement rules in Germany,
in Rosenbladt a collective agreement allowed employers to automatically terminate
employment contacts at pensionable age or age 65 if later. The claimant was a
cleaner who had been ‘retired’ and alleged this rule was a clear case of age
discrimination.
The Court decided that the ‘automatic termination of employment contracts also has
the advantage of not requiring employers to dismiss employees on the ground that
they are no longer capable of working and thus saved those of advanced age from an
experience which may be ‘humiliating’.141
It continued its liberal view on justifying compulsory retirement in accepting as
legitimate the aims of allowing good management of the firm’s workforce and
facilitating the employment of young people in a balanced manner.142
It readily
accepted that ‘[t]he termination of the employment contracts of those employees
directly benefits young workers by making it easier for them to find work, which is
138 Petersen, para 22
788
140
Case C-45/09 Gisela Rosenbladt v Oellerking Gebäudereinigungsges mbH [2010] ECR I-09391
141 Rosenbladt, para 43
142 ibid, para 60

37
otherwise difficult at a time of chronic unemployment.’143
The Court also declared the
means of achieving these aims were appropriate and necessary.
In Vasil Ivanov Georgiev144
the Court chose not to make a ruling on proportionality.
The case concerned a Bulgarian labour law that permitted universities to terminate the
contracts of teaching staff at age 65, and then re-employ them through fixed-term
contracts until age 68. This was not dissimilar to Gerhard Fuchs,145
which examined a
German federal law permitting the region of Land Hassen to retire civil servants at 65,
although this could be postponed annually until an age not exceeding 68, if it was
deemed in the interest of the service.
In Georgiev the Court considered these age limits and in citing Palacios held ‘that
encouragement of recruitment undoubtedly constitutes a legitimate aim of Member
States’ social or employment policy…in particular when the promotion of access of
young people to a profession is involved.’146
It also viewed the employment and
promotion opportunities for younger professors would help ‘to ensure the quality of
teaching and research…by establishing a balance between the generations.’147
This supported the Opinion of AG Bot that this measure would promote exchanges of
experience and innovation,148
and was another example of developing
‘intergenerational fairness’ an aim that had been approved in Petersen.
In Fuchs the Court decided to address the various aims that were proposed as
legitimate in the context of Article 6(1) in one assessment. It reminded Member States
of ‘the right to engage in work’ as recognised in Article 15(1) of the CFREU149
and it
continued ‘particular attention must be paid to the participation of older workers in the
143 ibid, para 43
144
Case C-250/09 Vasil Ivanov Georgiev v Tehnicheski universitet - Sofia, filial Plovdiv [2010] ECR I-11869
145 Joined Cases C-159/10 and C-160/10 Gerhard Fuchs and Peter Köhler [2011] I-06919
146 Georgiev, para 45
147 ibid, para 42 f
148 Case C-250/09 Vasil Ivanov Georgiev v Tehnicheski universitet - Sofia, filial Plovdiv [2010] ECR I-11869
Opinion of AG Bot, para 34
149 Fuchs, para 62

38
labour force’ which promotes diversity and contributes to their quality of life.150
This noticeably more enlightened approach towards the plight of older workers was
tempered by declaring in the following paragraph: ‘[h]owever, the interest represented
by the continued employment of those persons must be taken into account in
respecting other, potentially divergent interests.’ Striking this balance (without going
beyond what is appropriate and necessary) was a matter of choice of the national
authorities.151
In both cases the retirement rules were considered capable of being justified, although
ultimately neither were subject to a final ruling.
In Georgiev the Court determined the labour rule was capable of being justified but
noted the limited informational basis for the aims of this legislation and decided it was
for the national courts to determine if the measures were justified on the facts. Again
the ruling followed the pattern the Palacios and Petersen cases in applying a relaxed
level of scrutiny for judging age-related retirement practices driven by employment
market pressures. However the Court had stressed it was essential ‘to identify
precisely the aim which it pursues’152
and noted the written observations of Mr.
Georgiev. He had claimed the Bulgarian Government had ‘merely made assertions’
and the average age of a university professor was 58.153
He submitted that the reality
of the situation was ‘explained by an absence of interest on the part of young people in
a career as a professor.’154
It might be seen as encouraging that subsequently the national court was required to
examine the facts in order to determine the legitimacy of the aims in question.
150 Fuchs, para 63
151 ibid, para 64
153 ibid, para 47
154 ibid, para 47

39
In Fuchs the Court recognised establishing ‘a balanced age structure’155
in order to
encourage the recruitment and promotion prospects of young workers, and facilitate
planning staff departures was a legitimate aim, and hereby once again appeared to
sanction the ‘job-blocking’ argument with the ideal of intergenerational fairness within
the context of Article 6(1). On this occasion the Court had recognised the wide-range
of measures that might be considered ‘legitimate’, but not without some caveats.
Importantly the Court ruled that ‘while budgetary considerations can underpin the
chosen social policy…such considerations cannot in themselves constitute a legitimate
aim within the meaning of Article 6(1)’156
[emphasis added]. This helped clarify the
ambiguity relating to costs following Palacios.
The Court however, did not pass judgment on ‘proportionality’, and following on from
Georgiev, it recalled that it was for the national courts to assess their choices based on
fact, including ‘existing and verifiable data’ as well as ‘forecasts’157
and ‘statistical
evidence’.158
These cases had witnessed the Court variously sanctioning a wide-range of social
policy aims as legitimate. Mandatory retirement rules were readily seen as measures
that would create job opportunities for younger people. The Court also confirmed that
the preservation the elder workers dignity by imposing automatic withdrawal from
employment had been also been established as a justifiable motive.
The case of Reinhard Prigge159
was an unusual case of the Court determining a
proposed measure was not a qualified aim within the meaning of Article 6(1). In this
instance a collective agreement applying to the crew of Lufthansa and recognised by
German law, automatically retired pilots at age 60. The three claimants objected to this
155 Joined Cases C-159/010 & C-160/10 Gerhard Fuchs and Peter Köhler [2011] I-06919, para 60
156 ibid, para 74
157 ibid, para 81
158 ibid, para 82
159 Case C-447/09 Reinhard Prigge and Others v Deutsche Lufthansa AG [2011] ECR I-08003

40
blanket provision and the Court was asked whether this rule, applied for air safety
purposes, was compatible with the Directive.
The Court noted that the retirement age of 60 set in the agreement was a lower age
than that provided for by national and international regulations. This was a key factor
in its decision to find that the retirement rule in question was not justified as
proportionate in this case. The result had turned on this specific point, but of more
significance to the functioning of Article 6(1) was that the Court made it clear this
provision ‘must be interpreted to the effect that air traffic safety does not constitute a
legitimate aim within the meaning of that provision.’160
Whilst the aims listed within the
meaning of Article 6(1) are not exhaustive the Court had made it clear that in order to
be a ‘legitimate aim’ it must relate to social policy.
This was a rare example of the Court viewing that the proposed measure did not fall
within the category of ‘legitimate aims’ and as observed by Darren Newman, it might
suggest, ‘that any business objective that does not have a social policy basis cannot
be put forward as justifying age discrimination.’161
(ii) Seldon
In April 2012 the Supreme Court ruled on the case of the solicitor Mr. Seldon that had
begun when he issued proceedings claiming his forced retirement was an act of direct
age discrimination, back in March 2007. Mr. Seldon’s ‘retirement’ was in accordance
with his employer’s partnership deed, and as such the Default Retirement Age (DRA),
although not repealed until 2011, did not apply. However the case was held pursuant
to ‘the Age Regulations’,162
which have since been repealed and largely re-enacted in
the Equality Act 2010, which implemented the Directive.
The Supreme Court examined the jurisprudence pertaining to age discrimination with
160 ibid, para 83
161 Darren Newman, ‘Compulsory retirement at 60 not justified’ (2011) 217 EOR
162 The Employment Equality (Age) Regulations 2006, SI 2006/1031

41
particular reference to the justification of compulsory retirement, and was given the
opportunity to provide some clarity.
The Supreme Court acknowledged that age, uniquely amongst the nine ‘protected
characteristics’ that are identified in the Equality Act 2010163
could be subject to direct
discrimination. It also confirmed the approach determined in Age UK v Secretary of
State for Business, Innovation and Skills164
and Fuchs that established direct (as
distinct from indirect) discrimination justification must identify social policy objectives
that are compliant with public interest aims, and not just the needs of the individual
business.
At the Employment Tribunal165
three of the aims put forward by Mr. Seldon’s
employers had been accepted as legitimate, staff retention, workforce planning, and
avoiding performance management and thus promoting collegiality.
Lady Hale turned to the Court’s developing jurisprudence and considered the cases in
chronological order, and broadly restated their findings. She noted AG Bot’s concern in
Kucukdeveci that flexibility of personnel management was considered to be of public
interest nature but acknowledged that the Court had considered it was ‘more than
mere flexibility’166
in its design to encourage the recruitment of young people.
Lady Hale also repeated the finding in Fuchs [at 74] that ‘[b]udgetary considerations
might underpin the chosen social policy, but they could not in themselves constitute a
legitimate aim within Article 6(1)’.167
163 The nine characteristics are listed in the Equality Act 2010 pt 2 c1(4) age; disability; gender reassignment;
marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation
(Admin), [2010] ICR 260
165 Seldon v Clarkson Wright and Jakes [2007] ET/1100275/2007
166 Seldon v Clarkson Wright and Jakes {2012] UKSC 16 IRLR 590 [39] (Lady Hale)
167 ibid [46]

42
The Supreme Court dismissed the appeal by Mr. Seldon, finding that the firm of
solicitors had pursued legitimate aims of a public interested nature that were
consistent with the social policy of the state and the means used were appropriate.
The Supreme Court had provided some clarity, and reasserted that the public interest
nature was distinguishable from individual employer reasons, such as cost reduction;
confirmed that budgetary considerations could not be legitimate aims in themselves;
and determined that flexibility for employers is not a legitimate aim in itself but a
certain degree of flexibility may be permitted to employers in pursuit of their objectives.
Of particular importance for the purposes of this paper is the classification of the
legitimate aims that Lady Hale had ascertained from the emerging case law.
She outlined nine legitimate aims that had been recognised in the context of direct age
discrimination and observed that many of these did to some extent overlap. She
determined that ‘[t]wo different kinds of legitimate objective have been identified by the
Luxembourg court. The first kind may be summed up as inter-generational fairness,’168
which Lady Hale resolved could mean facilitating employment for young people,
enabling older people to remain employed, sharing limited opportunities between
generations, as well as sharing ideas and promoting diversity.169
Lady Hale attempted
to address the problem of the apparent conflicting social policy aims between ‘the
need to get young people into the workforce’ and ‘the need to enable older people to
continue working for as long as they are able and wish to do so.’ She maintained:
‘Only the state (or the social partners) can make the choice between these conflicting
aims and that is clearly what is contemplated by article 6.’170
Many commentators
believe it is incorrect to assume that the aims of promoting employment for the young
168 ibid [56]
169 ibid [56]
170 ibid [28]

43
and older workers cannot be simultaneously fulfilled, and this view will be discussed in
more detail when examining the validity of the notion commonly referred to as ‘job-
blocking’.
The court repeated the concerns for the older worker as expressed in Fuchs, and the
need to find a balance between the interested parties. It has been seen in a number of
judgments that to the detriment of the older worker, this so termed ‘balance’ has been
achieved through compulsory retirement, ‘automatic termination’ of contracts, and the
‘DRA’. These measures have been expressed in a number of cases in various terms
to justify a policy of targeting the elder employees who are viewed as job-blockers:
Palacios ‘encouragement of recruitment’;171
Age UK ‘maintaining confidence in the
labour market’;172
Petersen ‘share out the distribution of employment opportunities
among the generations’;173
Rosenbladt ‘sharing employment between the
generations’174
Georgiev ‘the offer of posts…to younger people’175
Fuchs ‘a balance
between generations’.176
These phrases might arguably appear to the older worker as
nothing more than euphemisms for mandatory retirement.
Member States have continued to assert that removing employees of a certain age
from the workforce will promote the employment of young people, and this has been
accepted by the Court with a minimal level of scrutiny. The theory, sometimes
indelicately termed ‘dead man’s shoes’, is at the core of intergenerational fairness and
is deemed by many academics and economists to be fundamentally flawed, and has
become known as the ‘lump of labour fallacy’.
172 Age UK [103]
173 Petersen, para 38
174 Rosenbladt, para 43
176 Fuchs, para 47

44
The second legitimate objective identified as dignity177
was interpreted as the aim of
‘avoiding the need to dismiss older workers on the grounds of incapacity or
underperformance, thus preserving their dignity and avoiding humiliation, and as
avoiding the need for costly and divisive disputes about capacity or
underperformance.’ Whilst Lady Hale considered intergenerational fairness as
‘comparatively uncontroversial’178
she recognised the comments in Age UK that stated
the underlying philosophy of all anti-discrimination law is the dignity of each individual,
and she observed that the assumptions underlying the dignity objectives ‘look
suspiciously like stereotyping.’179
However, in citing Rosenbladt and Fuchs she
endorsed Mr. Seldon’s employer’s argument of limiting the need to expel partners
through performance management as aim within the newly established ambit of dignity
and accepted it as legitimate.
The validity of these two legitimate aims, as identified by Lady Hale, will be discussed
in this paper in detail below. It will contest that the concept of ‘job-blocking’ is in fact an
economic fallacy, which lacks any empirical evidence. It will also discuss the adoption
of protecting dignity as an acceptable ground for permitting mandatory retirement as
highly controversial, and at very least questionable.
(iii) Evaluating intergenerational fairness
One of the main arguments put forward to establish the legitimacy of Member States’
retirement policies falls under the banner of ‘intergenerational fairness’, as categorised
by Lady Hale. The core of which is the facilitating of employment for young persons by
removing the ‘job-blocking’ older workforce. The Court has continually shown a
willingness to accept the assumption that job-blocking is a reality, despite the
177 Seldon v Clarkson Wright and Jakes {2012] ICR 716 [39] (Lady Hale) at 57
178 ibid [57]
179 ibid [57]

45
overriding opinion of many academics and economists.
The idea that older workers ‘block’ access to the labour market for younger people is
based on the ‘lump of labour’ theory, which can be traced back to the Victorian
polymath Henry Mayhew.
He observed London’s working class and in his papers of the 1850’s and reasoned
that cutting the number of hours worked by employees would reduce
unemployment.180
At its most basic level this concept holds that there is a fixed
number of jobs in the economy, but this is over simplistic and the model is flawed. As
Hepple warned, ‘one must beware’ of concluding that ‘every job occupied by an older
person precludes a job available for a younger person.’181
The lump of labour principle
dominated much of the macro-economic policies of Western Europe in the 1970s
and1980s but subsequent studies and research have largely discredited this notion,
and there is broad acceptance that ‘contemporary markets are capable of significant
expansion’.182
The idea that there is essentially a fixed stock of jobs is considered by
most economists to be a ‘fallacy’,183
however in specific circumstances it does have
some support.
The Nobel Prize-winning American economist Paul Krugman expressed an opinion in
an article for the New York Times that ‘the fallacy makes a comeback whenever the
economy is sluggish’184
and Stephen McNair commented in a paper for the UK
Commission for Employment and Skills: ‘While in general, this “lump of labour”
hypothesis has been discredited, it can be true in particular occupations, sectors or
180 Henry Mayhew, London Labour and the London Poor (George Woodfall and Son London, 1851)
181 Brian Hepple, ‘Age Discrimination in Employment: Implementing The Framework Directive 2000/78/EC’ in Sandra
Fredman and Sarah Spencer (eds), Age as an Equality Issue (Hart Publishing 2003) 90
182 John Macnicol, Age Discrimination – An Historical and Contemporary Analysis (CUP 2006) 96
183 The expression ‘lump-of-labour fallacy’ has been traced back David F Schloss,
‘Why Working Men Dislike Piece Work’ The Economist (London, 1891)
184 Paul Krugman, ‘Lumps of Labor’ New York Times (New York 7 October 2003)

46
localities.’185
Despite this small voice of dissention, which gives credence to the observation
attributed to George Bernard Shaw: ‘If all economics were laid end to end, they would
not reach a conclusion’, the overwhelming evidence is that the number of people
competing for jobs actually leads to an increase in the total number of jobs in the
economy.
Of course there will be situations when an older worker in a specific job may be
preventing a younger person from taking on that role, but these are particular
circumstances and form part of microeconomics that focuses on the individuals.
Macroeconomics studies the ‘bigger picture’ and all the evidence suggests that in the
economy as a whole, the older worker continuing in productive employment will
contribute to growth and a greater demand for more jobs.
Mayhew’s study was well intentioned, but somewhat unsurprisingly he failed to
account for advances in technology that have created an increasing number of
products and services and greater demand for labour. This theory also ignores the
supply-side dynamics; a more a competitive labour market emerges, and each
employee is also a consumer, leading to increased spending and an expanding job
pool.
A major study of 12 countries concluded in a working paper for the National Bureau of
Economic Research that ‘the weight of the evidence suggests that increasing the
employment of older persons provides more job opportunities for younger persons and
reduces the unemployment rate of younger persons.’186
Using statistics from the US 1977-2011 and the corresponding data available on
China, research published for the Center for Retirement Research at Boston College
185 Stephen McNair ‘Older people and skills in a changing economy’ (2011) UKCES Briefing Paper Series, 24
186 Jonathan Gruber, Kevin Milligan, David Wise, ‘Social Security Programs and retirement Around the World: The
Relationship to Youth Employment, Introduction and Summary’ (2009) NBER Working Paper No.14647, 64

47
found ‘no consistent evidence that changes in employment rates of older people
adversely affect the employment (both intensive and extensive margins) and wage
rates of their younger counterparts. If anything, the opposite is true.’187
In 2010 the
Institute for Fiscal Studies reported in a working paper: ‘When looking at the entire
1968- 2005 period, labour force participation of the old is positively associated with
employment of the young…Overall we find no evidence of long-term crowding-out of
younger individuals from the labour market by older workers.’188
The weight of evidence clearly upholds the notion that the concept of ‘lump of labour’
is indeed a ‘fallacy’, and yet Member States continue to promote the withdrawal of
older members from the workforce in an attempt to create jobs for younger persons,
engaging in measures which the Court sanctions with surprising ease. As observed by
Bisom-Rapp and Sargeant: ‘There is no evidence supporting the general argument
that removing older workers provides opportunities for younger workers. Nevertheless,
the CJEU has appeared willing to accept this stance as part of its jurisprudence.’189
In the UK it would appear that the Government has now adopted the approach that
encouraging older workers to remain employed is good for the economy at large, and
will potentially increase the opportunities for youth employment. Back in 2000, the
Labour Government produced ‘Winning the Generation Game’, stating it was a
‘misplaced belief that there are a fixed number of jobs in the economy’ and maintained
187 Alicia H. Munnell and April Yanyuan Wu, ‘Will Delayed Retirement by the Baby Boomers Lead to Higher
Unemployment Among Younger Workers?’ (2012) Center for Retirement Research at Boston College Working
Papers WP 2012-22, 2 <http://crr.bc.edu/working-papers/will-delayed-retirement-by-the-baby-boomers-lead-to-
higher-unemployment-among-younger-workers/> accessed 26 March 2014
188 James Banks, Richard Blundell, Antoine Bozio and Carl Emerson, ‘Releasing jobs for the young? Early retirement
and youth unemployment in the United Kingdom’ (2010) IFS Working Papers Series W10/02, 24
189 Susan Bisom-Rapp and Malcolm Sargeant, ‘Diverging Doctrine, Converging Outcomes: Evaluating age
Discrimination Law in the United Kingdom and the United State (2013) 44 Loyola University Chicago Law Journal
2013 717, 750

48
that a flexible labour market with more people competing for jobs creates higher
growth and leads to the number of jobs in the economy increasing.190
Following the decision to repeal the DRA in 2011 this stance has become more
entrenched. The consultation document ‘Phasing out the Default Retirement Age:
Government response to consultation’ announced in its foreword: ‘Evidence shows
that keeping more people in work helps the economy grow. It is estimated that, if
everyone worked a year longer, annual GDP could increase by £13bn…It is not the
case that older people in work block jobs for younger people.’
A 2013 publication by the Department for Work and Pensions continued in this vein,
declaring: ‘Some people mistakenly believe that productive older workers should make
way for younger workers and “free up the job market” but the facts show this can
create further problems for both the business and the wider labour market.’191
This
was followed soon afterwards by ‘Ready for Ageing?’, a House of Lords report, which
recommended that: ‘The Government should publicly reject the “lump of labour fallacy”
that wrongly argues this will disadvantage the young.’192
This would appear to signal that a compulsory retirement rule on the grounds of
intergenerational fairness through addressing the so termed ‘job-blocking’ issue would
no longer be considered a ‘legitimate’ public interest aim in the UK.
In view of these developments it would seem unlikely that a UK court would accept an
argument for retiring staff based on the lump of labour theory; following the guidance
190 Cabinet Office Performance and Innovation Unit, Winning the Generation Game: Improving Opportunities for
People Aged 50-65 in Work and Community Activity (Stationery Office Books, 2000) 39
<http://webarchive.nationalarchives.gov.uk/+/http://www.cabinetoffice.gov.uk/media/cabinetoffice/strategy/assets/gen
eration.pdf> accessed 25 March 2014
191 Department for Work and Pensions, ‘Employing older workers: an employer’ s guide to today’s multi-generational
workforce’ 8 February, 2013
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/142751/employing-older-
workers.pdf> accessed 25 March 2014
192 Select Committee on Public Service and Demographic Change, ‘Ready for Ageing?’ [Report of Session 2012-13]
HL Paper <http://www.publications.parliament.uk/pa/ld201213/ldselect/ldpublic/140/140.pdf> accessed 26 March
2014

49
of Blake J in Age UK, it would be hard to corroborate the view that this remains a
legitimate social policy measure ‘within the context of national law’.
It is however, unlikely that other EU Member State’s will adopt this more enlightened
approach in the near future. The realpolitik of a nation such as Spain makes it difficult
to reverse a domestic policy that is heralded as a measure seeking to tackle youth
unemployment currently running at 55%, regardless of empirical data and the
conclusion of the vast majority experts in the field of labour market economics. It is up
to the Court to question the objective justification of measures aimed at job blocking
and request supporting evidence for these measures social policy.
The second important aspect of intergenerational fairness relates to the
encouragement of mutual cooperation and support between the age groups, which
promotes diversity and the interchange of ideas.
It is clear that young employees are a crucial part of this workforce interaction;
however removing older people will surely limit the perceived benefits of any such
‘interplay’. A compulsory retirement age creates a cut-off point, restricting the level of
experience that can be gained and then passed on. This idea of fairness should
include elder workers, and not be at the expense of them, their contribution to the
labour market will help cope with the demanding challenges of demographic change
that lay ahead.
The interchange between generations would be more productive with a wider range of
ages in the workplace. This could be achieved by, as argued above, refuting job-
blocking measures and avoiding the compulsory retirement of staff, at least until their
inside knowledge and experiences have been passed on and retained within the
business. The best way to promote intergenerational solidarity is to maintain a
workforce that spans all ages, through preserving and creating jobs, and not by
enforced rules of retirement.

50
(iv) Interpreting ‘dignity’
Lady Hale ‘summed up’193
dignity as a legitimate objective which justified compulsory
retirement as a means of avoiding the humiliation of dismissal due to
underperformance or capacity, and avoiding any associated costly disputes. She cited
Rosenbladt and Fuchs, and followed on from Sir Mark’s Waller judgment in the Court
of Appeal, where he had discerned, ‘my experience would tell me that it is a
justification for having a cut-off age that people will be allowed to retire with dignity’.194
Nevertheless Lady Hale acknowledged the controversial aspect of dignity in relation to
the field of age discrimination. Dignity as a concept is a complex issue at the heart of
the debate between the ‘competing values’195
of liberty and equality. As AG Stix-Hackl
declared in the Omega case regarding fictitious violence and human dignity in
Germany: ‘There is hardly any legal principle more difficult to fathom in law than that of
human dignity’.196
Lady Hale had expressed her own concern that the underlying
assumptions resembled stereotyping, which would appear to be the obvious
conclusion. It is hard to see how a blanket approach to retiring older workers based
on the entrenched but often unfounded idea of declining performance, can be seen as
anything other than stereotyping. Stereotyping is a form of prejudice, and a violation of
human dignity, and as Fredman reminds us, ‘it is a fundamental aim of equality to
ensure that an individual is treated according to her merit, free of stereotypical
assumptions’.197
193 Seldon [57] (Lady Hale)
194 Seldon v Clarkson Wright and Jakes EWCA Civ 899 [23] (Sir Mark Waller)
195 Sandra Fredman, Discrimination Law (Routledge 2013) 33
196 Case C-36/02 Omega [2004] ECR I-9609, Opinion of AG Stix-Hackl, para 74
197 Sandra Fredman, ‘What do we mean by age equality?’ (IPPR seminar, Nuffield Foundation, November 2001) 17

51
It is accepted that in certain cases the right or principle of dignity may be invoked to
justify restricting other rights.198
Forced retirement would seem incompatible with age
equality, however Member States have argued that imposing retirement on older
workers will serve in the social and economic interests of the younger generation. It
may be considered that in this case the dignity of the older workers is not infringed as
retirement is not applied to them out of contempt or an assumed deterioration in
performance, and so the egalitarian notion of dignity will be upheld.199
It has been
asserted that this ‘addresses the egalitarian concerns surrounding retirement, and
suggests that the current CJEU approach of justifying the flexible retention of
retirement ages is compatible with concepts of dignity and respect for the individual’.200
However this notion is based on the belief that intergenerational solidarity is better
served by confronting the issue of job-blocking, an approach that as discussed here is
largely discredited as being economically unsound. It is also relevant that in this case
Lady Hale was equating dignity with humiliation, her reasoning was from the
perspective of self-respect and separate from the issue of intergenerational fairness,
and as such this aspect of Seldon is not engaged in the economic egalitarianism
debate.
Of course violations to dignity may have psychological consequences, and as Reaume
commented, to protect this ‘we must be attentive to the ways in which our treatment of
others diminishes self-respect’,201
but a subjective approach that encourages judges to
make decisions based on other people’s feelings does not give adequate guidance to
198 Rory O’Connell, ‘The role of dignity in equality law: Lessons from Canada and South Africa’ (2008) 6 IJCL 267,
269
199 Simonetta Manfredi and Lucy Vickers, ‘Meeting the Challenges of Active Ageing in the Workplace: is the Abolition
of Retirement the Answer?’ (2013) 4 ELLJ 250, 263
200 ibid 264
201 Denise G. Reaume, ‘Discrimination and Dignity’ (2003) 63 Louisiana Law Review 1, 32

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