Subsidiarity in action
Civitas, 10 March 2009
The Charity ‘Age Concern England’ brought a case to the British High Court to challenge the British law that empowers employers to sack somebody when they reach retirement age – 65 years old, writes Kyial Arabaeva. The Charity is urging the UK Government to abolish the mandatory retirement age.
About 25,000 workers in UK are forced to retire each year because they have reached 65, when they would be willing to continue working. Gordon Lishman said: “The Government’s position is increasingly contradictory. Only last week ministers criticised the ‘grey ceiling’ which stops people working beyond the age of 65. Yet, they continue to consign millions of willing and able older workers to the scrapheap by maintaining the very barrier which prevents them from extending their working lives. It is time for ministers to find the courage of their convictions and abolish the default retirement age without further delay”.
The European Court of Justice ruled that the British law can be justified as a part of wider social policy targets and that therefore; it is up to the national courts to decide on it. The ECJ stated that “National legislation may provide, in a general manner, that this kind of difference of treatment on grounds of age is justified if it is a proportionate means to achieve a legitimate social policy objective related to employment policy, the labour market or vocational training”. With this ruling, the ECJ is saying that the UK is not breaking EU law when dismissing people when they reach 65 years of age. For example, the ECJ said that the EU Directive on Age Discrimination allows “certain differences of treatment on grounds of age” if they can be justified by “legitimate” labour market objectives and employment policies.
Oxford Analytica argues that the ECJ’s decision to leave the final verdict to the national courts does little to clarify this issue and the fate of those affected by the legislation.
However, further EU regulations would not necessarily enable greater clarity or a positive affect on UK legislation. For example, during the recent strike action at the Linsey Oil refinery, Unions in the UK campaigned for changes in the EU’s Posted Workers Directive which, they believed, empowers firms to give jobs to foreign workers for rates that are below the domestic wages. The EU also plans to extend the scope of its Integrated Pollution Prevention and Control (IPPC) Directive, which is likely to impose high extra running costs on 70 NHS hospitals by raising the price of running boilers.
The EU has jurisdiction on certain issues, for which its supranational bodies make the final decision for all 27 EU member states. However, decision making in certain policy areas remains the domain of national governments. Therefore, whilst the EU often imposes its rules and regulations on national governments, in this instance the EU is letting the UK government and the national courts to decide. So the UK should make a firm decision.
Age Concern Britain is determined to continue to fight against the forced retirement of those over 65. Director General of Age Concern Gordon Lishman said: “We still have a very strong chance of winning in the British courts”. Referring to the ECJ’s ruling, he has said the government must prove why it is needed‚ and its justifications should be grounded on labour market needs and social policy goals. Another NGO that deals with elderly issues Help the Aged said that ‘….mandatory retirement ages are even more unfair in the current context of the economic and financial crisis.’ As the NGO’s Policy Director Paul Cann notes especially in times as now willing and able elderly people should be given a choice to work beyond the retirement age if they wish. Companies, which force them to leave, do not offer them any pay outs. Even those who would be happy to retire cannot afford it as the pensions are not enough to make for a living.
The government said that it would review the mandatory retirement age in 2011 and would consider abolishing it if it was no longer necessary. Let’s hope that in this instance, when the UK Government has an opportunity to act autonomously, the Government will set an example and create strong national laws and regulations, thus justifying the principle of subsidiary – decision making at the lowest/least centralised level.