How old should airline pilots be before they’re made to retire? That was the central question in a case brought by German pilots against the airline Lufthansa which has just been considered by the European Court of Justice (ECJ).
A collective agreement to which Lufthansa had signed up included a blanket prohibition on pilots working after they had reached the age of 60. Three pilots, whose employment contracts automatically terminated on their 60th birthday, didn’t feel ready to hang up their captain’s hats. They claimed the rule amounted to unlawful age discrimination.
The German court decided to ask the ECJ what it thought. A key point was that both German and international law allows pilots aged between 60 and 65 to carry on working, so long as the other members of the air crew are younger than 60.
In light of that, the ECJ concluded that a complete ban on pilots working beyond the age of 60 was a disproportionate requirement. It went beyond what was really needed to ensure air traffic safety and protect public health and security.
The ECJ did accept that possessing particular physical capabilities is a genuine requirement for acting as a pilot and such capabilities diminish with age. But the judgment makes clear that any difference in treatment on grounds of age must be justified as being necessary and proportionate.
This case has obvious implications for the aviation sector. But more generally, it highlights the developing obligation under age discrimination laws for organisations to justify compulsory retirement ages. They need be in a position to provide cogent, objective reasons for adopting particular ages for particular jobs. Conducting a comprehensive audit of retirement policies and procedures is strongly advisable.
Employers who try to wing it could be heading for a crash landing… in court
Ius Laboris is a global alliance of over 40 leading management labour and employment law firms, of which Heenan Blaikie is the Canadian member.