UK: Default Retirement Laws – A Ray Of Light For Employers?

Last Updated: 4 November 2011
Article by Justin McGilloway

The EU Equal Treatment Framework Directive (the Directive)1 outlaws direct or indirect discrimination. However, it stipulates that member states may provide that differences of treatment do not constitute discrimination if "they are objectively 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".

In Fuchs v Land Hessen,2 the European Court of Justice (ECJ) recently held that operating a fixed retirement age may be justified if it helps to prevent possible disputes concerning employees' fitness to work beyond a certain age.

Default Retirement Age - a reminder

  • The Default Retirement Age was removed in the UK with effect from 6 April 2011.
  • Employers can no longer serve employees notice relying on the statutory retirement procedures under the Employment Rights Act 1996.
  • Employers are able to operate a fixed retirement age where it can be objectively justified and shown to be a proportionate response to a legitimate social aim.

Facts of the case

Land Hessen is a state in Germany and its laws provide that civil servants shall retire at the age of 65. It is possible for retirement to be postponed on the request of the employees for periods of no more than one year, subject to an overall age limit of 68. However, postponement will only be allowed 'if it is in the interests of the service.'

This retirement age did not apply to all civil servants, such as teachers and lecturers. Elected officials retire at 71 if their term of office had not yet expired. At federal level, the retirement age of civil servants had slowly increased, since 2009, to 67 years of age. However, this was not compulsory at state level and had not been adopted in the Land Hessen.

The case involved two state prosecutors named Mr Fuchs and Mr Kohler. They both worked for the Land Hessen until 2009 when they reached the age of 65. Both were refused postponed retirement on the grounds that it was not in the interests of the service. As a result, they applied to the court and questions were referred to the ECJ regarding the compatibility of the German laws with the Directive.


The ECJ held that the compulsory retirement age of 65 would satisfy the requirements of the Directive, provided that certain conditions were met.

Were the aims legitimate?

The court concluded that the aim of establishing an age structure that balances young and older employees can constitute a legitimate aim of employment. It was also a legitimate aim to encourage the recruitment and promotion of young people, to improve personnel management and thereby to prevent possible disputes concerning employees' fitness to work beyond a certain age. The age balance ensures that the experience of the older staff is passed on to the younger staff who in turn share their recently acquired knowledge, thus helping to provide a high-quality service.

As the retirement of a prosecutor did not necessarily result in the hiring of a replacement, it was argued that the aim was to save costs. It was held that EU law does not prevent member states taking into account budgetary considerations at the same time as political, social or demographic considerations. However, regardless of the importance of the budgetary considerations, they cannot constitute a legitimate aim on their own.

What evidence is required to show aims were 'appropriate and necessary'?

The Directive imposes a high standard of proof on the member states to show that their aims are justifiable. The measure 'must not appear unreasonable in the light of the aim pursued' and must be supported by evidence, which may include statistical evidence.

In this case the aim was considered appropriate and necessary as compulsory retirement at age 65 did achieve the aim of encouraging recruitment and it was not unduly prejudicing the employees concerned as they were entitled to a pension that was considered reasonable. The Pension available to most prosecutors was the equivalent to 75% of their salary.

Did the measure lack sufficient 'coherence'?

For a law to be considered 'appropriate' it must achieve its aim in a 'consistent and systematic manner'. It is noted that 'exceptions to the provision of a law can undermine the consistency of that law', thus leading to a result contrary to the objective pursued.

The exception which enables prosecutors to work until the age of 68 is unlikely to undermine the aim pursued. The Land Hessen argued that it was an exception which intended to cover prosecutors who reached the retirement age before all their criminal case proceedings had been concluded, thus avoiding any complications with replacing the prosecutor. It was argued that this positively mitigated the rigidity of the law.

It was argued that the reduction in pension rights for those seeking voluntary retirement between the age of 60 and 63 was not coherent with the law. However it was deemed to aid the aim pursued by discouraging early retirement and thus ensuring the age balance.

The fact that the federal government retirement ages were increasing to 67 did not undermine the legitimate aim of the law. There must be a transition from one law to another, which will not be immediate and may take time.


Some commentators have argued that this ruling will have little impact on employers who are seeking to justify the compulsory retirement of employees. Others believe it to be a wasted opportunity to bring some clarity to this area of the law.

The governments of EU Member States are afforded a degree of freedom when implementing their own discriminatory laws and whilst it may provide useful guidance on the ECJ's approach to objective justification, it cannot be looked at in isolation. UK employers face far more stringent tests, especially in the UK courts and tribunals. Despite this, however, the legitimate aims discussed above could justify compulsory retirement provided they are 'appropriate and necessary' - demonstrating this is where the problem lies!


1.The Equal Treatment Framework Directive 2000/78/EC is available at

2 Fuchs v Land Hessen C-159/10 and C-160/10 is available at

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Reed Smith (Worldwide)
Fieldfisher LLP
Rawlison Butler LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Reed Smith (Worldwide)
Fieldfisher LLP
Rawlison Butler LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions