Does a Compulsory Retirement Age Infringe Human Rights Law?

1. Unfair Dismissal for Compulsory Retirement?

An employer’s compulsory retirement scheme requires the dismissal of an employee for no other reason than the employee has attained a specified retirement age. The retirement age may be fixed in the terms of the contract of employment, a staff handbook, a collective agreement, or other regulations that determine the rules governing a particular retirement age. Although compulsory retirement used to be lawful, since 2011 the position in the United Kingdom (UK) is that an employee dismissed in accordance with an employer’s policy of a compulsory retirement age can bring a claim either for unfair dismissal under the Employment Rights Act 1996 or (for workers as well as employees) for age discrimination under the Equality Act 2010. Following Seldon v Clarkson Wright & Jakes [2012] UKSC 16, an employer can justify the age discrimination of a compulsory retirement age as a proportionate measure in pursuit of a legitimate aim, such as preserving the promotion prospects of younger staff or the avoidance of intrusive surveillance of the job performance of older staff.

What would happen instead if an employee brought a claim for unfair dismissal?  It seems likely that a dismissal that could be justified under the Equality Act 2010 would be regarded as falling within the range of reasonable responses test of fairness in the law of unfair dismissal. But might it be possible to argue that, if the dismissal unjustifiably interfered with a right protected by the European Convention on Human Rights (ECHR), the dismissal should be regarded as unfair even if it might be justifiable discrimination under the Equality Act 2010? The question of whether compulsory retirement interferes with a Convention right is a core issue in an appeal due to be heard in May 2021 by the Judicial Committee of the Privy Council in The Royal Cayman Islands Police Association and others v The Commissioner of the Royal Cayman Islands Police, Case no: 2019/0103, on appeal from a case with the same parties from the Court of Appeal of the Cayman Islands reported in 2019 (1) CILR 107.

Such a claim of unfair dismissal under UK law in response to dismissal under a compulsory retirement scheme would encounter two significant hurdles. The first issue would be the identification of a relevant Convention right that was engaged by the dismissal. The second question would be whether or not such a dismissal was unfair because it fell outside the range of reasonable responses test of fairness in the law of unfair dismissal. Following X v Y [2004] ICR 1634 (CA) , Hill v Governing Body of Great Tey Primary School [2013] ICR 691 (EAT), and Q v Secretary Of State For Justice [2020] UKEAT 0120_19_1001, it is accepted by the UK courts that if a dismissal involves an unjustified interference with a Convention right, it should be regarded as falling outside the range of reasonable responses. It remains a matter of debate, however, when the protection of the interests of the employer in such matters as efficiency, loyalty, or reputation provide a sufficient justification for an interference with a Convention right by a dismissal. It was noted by the Court of Appeal in Turner v East Midland Trains Ltd [2013] ICR 525 that the European Court of Human Rights (ECtHR) had attached considerable weight to those interests of employers when conducting its test of proportionality. Since that time, however, a number of decisions of the ECtHR have place greater weight on the protection of the job security of employees, such as Eweida and others v UK, Barbulescu v Romania, and Denisov v Ukraine. Accordingly, the test of proportionality used in the justification for interferences with Convention rights by dismissals and therefore the test of fairness in unfair dismissal cases involving interferences with Convention rights may have become stricter. That test of justification for interferences with Convention rights is not necessarily the same as the broad test of justification in the Equality Act 2010 with respect to age discrimination as interpreted in Seldon v Clarkson Wright & Jakes. The focus of this essay is on the first issue of whether compulsory retirement might interfere with any Convention right at all.

2. Article 14 combined with Article 8

What Convention right might be engaged by a dismissal in accordance with a compulsory retirement age?  Article 14 combined with Article 8 provides the strongest possibility for establishing an interference with a Convention right.  Article 14 provides a general prohibition on discrimination in the enjoyment of rights:

‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’

To find that Article 14 applies to compulsory retirement policies, the first question is whether ‘age’ can qualify as ‘other status’, since it is not mentioned expressly in the list. The ECtHR adopts a flexible approach to the question of what qualifies as ‘other status’. Rules that require different treatment of apparently similar cases will be regarded as discrimination by status if the rule does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Applying this test, age discrimination can count as ‘other status’ under the convention. For instance, in British Gurkha Welfare Society and Ors v UK Appln App No. 4418/11, a case concerning pensions that were affected by different conditions for retirement, the UK government conceded that age fell within ‘other status’ as a protected characteristic (para [64]).

Article 8, the right to respect for private life, provides the strongest possibility for supplying the necessary Convention right to attach to Article 14. According to the ECtHR Grand Chamber’s admissibility decision in Denisov v Ukraine, there are two ways in which a dismissal may trigger Article 8. The first is that the employer’s reason for dismissal falls within the concept of private life. For example, if the dismissal concerns the employee’s intimate or family relations, as in the example of dismissals for being gay or lesbian, the reason for the dismissal falls within the scope of Article 8. Alternatively, a dismissal may adversely affect a person’s private life as a result of the consequences of a dismissal. For instance, if the consequence of the dismissal is that the employee will not be able to work again in his or her chosen profession, that adverse effect on personal development could be regarded as sufficiently serious a detriment to a person’s autonomy and life-plans to amount to an infringement of the right to respect for private life.

Both of these kinds of infringement were illustrated in Fernández Martinez v Spain App No. 56030/07. The applicant, a married Catholic priest with a family, was dismissed from his job as a teacher of religious education in schools when the bishop revoked the necessary certificate for him to teach on account of the fear of adverse publicity arising for the Church from his breach of the rule of celibacy. A majority of the Grand Chamber of the ECtHR held that Article 8 was applicable because the dismissal and exclusion from the applicant’s professional life as a teacher of religious education at age 60 were serious consequences that occurred on account of events mainly relating to personal choices he had made in his private and family life (para [113]). This basis for the application of Article 8 in this case blends a consequence-based approach that emphasises the applicant’s permanent exclusion from a chosen profession with a reasons-based approach that links the motive for the dismissal to his private life in the traditional sense of family life. The minority preferred to stick to the traditional reason-based approach that Article 8 applied because the dismissal was a response to the way in which he manifested his private and family life (dissent para [10]). The final outcome was that the ECtHR held that the decision of the Spanish courts, being that the dismissal was fair, was within their margin of appreciation taking into account the importance of respecting the integrity of the Catholic Church in Spain.

Could Article 8 apply to dismissal in accordance with a compulsory retirement age? Before answering that question, we need to recall that to invoke Article 14, it does not have to be established that there was an infringement of a Convention right. What is necessary is that the impugned conduct fell ‘‘within the ambit’ of a Convention right. In the case of dismissal on the ground of age, what has to be established is that the dismissal was within the ambit of either (or both) of the strands of Article 8, either because the reason for the dismissal challenged a person’s enjoyment of a personal life, self-respect, or personal development (the reasons-based approach), or because the adverse consequences of the dismissal on a person’s life and family were extremely damaging (the consequences-based approach).

In Emel Boyraz v Turkey [2014] ECHR 1344, [2015] IRLR 164, the ECtHR found both approaches to Article 8 to be applicable to a case of dismissal on the ground of direct sex discrimination brought under Article 14. The female applicant was dismissed from her position as a security guard for TEDAS, the state-run electricity company, on the ground that the post in question was reserved for those who had done military service, a condition that could only be satisfied by men. The ECtHR concluded that the dismissal fell within the ambit of Article 8 for several reasons.

‘[D]ismissal from a post on the sole ground of sex has adverse effect on a person’s identity, self-perception and self-respect and, as a result, his or her private life… Besides, the applicant’s dismissal had an impact on her ‘inner circle’ as the loss of her job must have had tangible consequences for the material well-being of her and her family…The applicant must also have suffered distress and anxiety on account of the loss of her post. What is more, the applicant’s dismissal affected a wide range of her relationships with other people, including those of a professional nature and her ability to practice a profession which corresponded to her qualifications…’ (para [44)]

The reasons given for saying that the case fell within the ambit of Article 8 commence with matters that blend the reasons-based approach concerned with personal development, such as a person’s gender, identity, and self-respect, with adverse consequences to private life. Other grounds, such as loss of professional and personal contacts, material and psychological adverse effects, and exclusion from a chosen profession, insteaad emphasise the adverse consequences of a dismissal on a person’s ordinary life. The ECtHR concluded that the difference in treatment between men and women did not pursue a legitimate aim, so there was a violation of Article 14 taken in conjunction with Article 8.

Can it be argued that in the same vein that a compulsory retirement age can fall within the ambit of Article 8, thereby opening up the possibility of an infringement of Article 14? Under a reasons-based approach to Article 8, the argument would have to be that dismissal for old age inevitably has an adverse effect on a person’s identity, self-perception and self-respect by, for example, making them feel that they are no longer valued or respected as an equal co-worker, which in turn would have adverse effects on his or her private life. Under the consequences-based approach, it would be necessary to point to significant adverse consequences arising from the dismissal, which might arise from exclusion from a chosen profession or from serious adverse material or psychological consequences. In short, to use an emotional metaphor, if in some sense a dismissed worker ‘ends up on the scrap-heap’, that may well be enough to bring the case within the ambit of the consequences-based approach to Article 8.

3. Compulsory Retirement in the Royal Cayman Islands Police

As mentioned above, the question of whether a compulsory retirement age can fall within the ambit of Article 8, thereby creating the possibility of an infringement of Article 14, is due to be considered by the Privy Council in May in The Royal Cayman Islands Police Association and others v The Commissioner of the Royal Cayman Islands Police. Before November 2010, police officers below the rank of Chief Inspector serving in the Royal Cayman Islands Police service were automatically retired at the age of 55, although, if they chose, they could be re-engaged, but only at the rank of Constable. In November 2010, the compulsory retirement age was raised to 60, but that change did not apply to police officers already in service at that date. In 2016, the law was amended to permit all police officers, whenever their service had commenced, to remain until age 65, subject to medical and physical tests. The ten plaintiffs were all forced to retire at 55 after the retirement age for more recent recruits was raised to 60 in 2010. The plaintiffs claimed that they had been discriminated against on the ground of age because they were required to retire at 55 whereas colleagues appointed after November 2010 were not. Furthermore, this discriminatory action, though authorised by law, was claimed to be contrary to the Cayman Islands Constitution.

The Bill of Rights of the Cayman Islands Constitution Order 2009, SI 2019/1379 Schedule 2 Part 1, largely replicates the relevant provisions of the ECHR, including the right to respect for private life (Section 9) and the prohibition against unjustified discrimination (Section 16). One minor difference is that Section 16 mentions age as a prohibited ground of discrimination, so that the question of whether age is a status did not arise before the Cayman Islands Court of Appeal (CICA). Following Rodriguez v Minister of Housing of the Government [2009] UKPC 52, it was accepted that interpretations of that Bill of Rights should conform to the interpretations placed on the same provisions in the ECHR by the ECtHR. The core questions before the CICA were therefore whether the laws on compulsory retirement between November 2010 and September 2016 constituted a breach of the Bill of Rights because the dismissals fell within the ambit of Section 9 (Article 8 ECHR) and were unjustifiably discriminatory contrary to Section 16 (Article 14 ECHR).

The CICA (Sir Bernard Rix, The Hon. John Martin QC, Sir Alan Moses) upheld the decision of Hall (Ag. J) that the dismissals did not fall within the ambit of Section 9, the right to respect for private life. It was therefore unnecessary to consider the question of discrimination and justification, though the Court indicated that, had it been necessary to decide the issue, the compulsory retirement at 55, once those entering service later were allowed to retire at 60, was not justified (para [54]). Is it correct that compulsory retirement cannot fall within the ambit of the right to respect for private life?

4. The Consequence-based Approach to Article 8 ECHR

In reaching its conclusion, the CICA relied heavily on the Grand Chamber’s admissibility decision in Denisov v Ukraine. That case involved the application of Article 8, with no conjunction with Article 14, so the question being considered by the Grand Chamber was not whether the dismissal fell within the ambit of Article 8, but whether there had in fact been an interference with Article 8, which may require a more stringent test. It is true, however, that Denisov stressed the need to demonstrate serious adverse consequences from a dismissal in order to engage Article 8 in the consequences-based approach, not merely the inevitable disadvantages arising from losing one’s job and having to find another. Those serious consequences might include major damage to professional reputation, loss of a career, and major financial losses.

The English Court of Appeal had applied the same approach in Vining v Wandsworth London Borough Council [2016] ICR 499 (a case again involving Article 8 alone) to conclude that compulsory dismissals for redundancy when a council service was terminated did not have sufficiently serious consequences, because the workers suffered no damage to their reputation and could find suitable alternative employment in due course. In what was regarded by the CICA as an unchallengeable finding of fact, at first instance Hall (Ag.J.) had concluded, similarly, that the compulsory retirements did not entail any stigma or reputational damage, so that the consequence-based approach was inapplicable on the facts.

A question that was not considered by the CICA was whether the same severity of consequences is required to bring a dismissal within the ambit of Article 8 under the consequences-based approach as was required in Denisov for a case brought under Article 8 alone. Looking at the above quotation for Emel Boyraz v Turkey, the question posed in that case that combined Article 8 and Article 14 was whether there were ‘tangible consequences for the material well-being’ of the plaintiff, or whether ‘the ability to practice a profession which corresponded to her qualifications’ had been adversely affected. These criteria for assessing the ambit of Article 8 may establish a lower threshold than was required in Denisov. The earliest dismissal case of this kind involving the conjunction of Article 14 with Article 8, Sidabras v Lithuania, was one where the exclusion of the applicants from most jobs, including those in which they could use their skills and qualifications, was sufficient to bring the case within Article 8. In contrast, in J.B. and others v Hungary App No. 45434/12, the lowering of the compulsory retirement age of judges from 70 to 65 was not regarded as sufficiently serious in its harmful consequences to fall within the ambit of Article 8 (combined with Article 14). That conclusion about the absence of serious consequence arising from compulsory retirement can be explained, however, because the applicants had eventually been reinstated and compensated following a successful claim for age discrimination before the Court of Justice of the European Union: Commission v Hungary C-286/12.

With regard to the police officers of the Cayman Islands, the record does not reveal what kinds of adverse consequences flowed from the compulsory retirement. It seems likely that the opportunities to use the qualifications and skills of being a trained and experienced police officer might be few and far between on the islands. Like Mr Fernandez Martinez who lost his job as a teacher and after a long period of unemployment had to settle for an unskilled job as a museum attendant, the police officers, if excluded from the police service, would presumably have to seek less interesting work that was not commensurate with their skills such as a security guard at one of the many banks on the island. It is even possible, of course, that these retired police officers might be unable to obtain alternative employment at all because of their age. Adverse consequences for the right to work of this kind should surely suffice to bring the case within the ambit of Article 8.

5. The Reasons-based Approach to Article 8

The alternative possibility for fitting compulsory retirement into the ambit of Article 8 is to consider the reasons-based approach. Here, the argument is that dismissing someone merely because of their age is inherently an attack on their dignity, self-esteem, and personal development that is bound to have an adverse impact on their private life. An analogous interpretation of the ambit of Article 8 was applied to sex discrimination in Emel Boyraz v Turkey. It was also accepted in I.B. v Greece App No. 552/10, a case involving the dismissal of an employee because he was HIV-positive and his colleagues did not want to work with him. The reasons-based approach was applied to age discrimination linked to other factors in Novaković v. Croatia App No. 73544/14. In this case, a schoolteacher was dismissed because he used the Serbian language in teaching (though the school had become part of Croatia) and the employer took the view that as he was aged 55, he was too old to learn the Croatian language that was now required in schools. The ECtHR concluded that as language is closely linked to ethnic identity and the perception that he could not learn a new language was linked to his age, these reasons for the dismissal brought the case within Article 8 on a reasons-based approach (para [49]) (without the need to invoke Article 14). On the other hand, the reasons-based approach was not applied to the reduction of the compulsory retirement age for judges in J.B. and others v Hungary. In the case of judges, however, the compulsory retirement age is linked to the independence of the judiciary. Since in general there cannot be dismissals of judges for cause, unusually a compulsory retirement age is required to terminate their employment. Such a compulsory retirement age for judges therefore cannot be regarded objectively as damaging to a judge’s dignity, self-esteem and personal development.

With regard to the Cayman Islands Police, the CICA insisted, however, that dismissal on grounds of age was in a ‘different category to such characteristics as gender or sexual orientation’ (para [29]). Drawing on jurisprudence from the USA, it was argued that race and gender are ‘suspect grounds’ for discrimination, which can rarely be justified, whereas age can much more easily be justified by reference to social and economic policies. Whilst that latter point is true, it is unclear why it is relevant to the determination of the ambit of Article 8 (1). The grounds by which discrimination can be justified form part of the enquiry under Article 8(2) and Article 14 ECHR. Most cases of age discrimination may well be justifiable by legitimate and proportionate social policies. But that does not have a direct bearing on whether discriminatory dismissals on the ground of age are credibly regarded as attacks on dignity, self-esteem, and personal development within Article 8.

Admittedly, most differences in treatment on the grounds of age may not satisfy those criteria of being an infringement of a person’s dignity, self-esteem, and personal development. Special rules applicable to children under the age of 18 are unlikely, for instance, to undermine dignity and self-esteem for they are probably designed rather to facilitate personal development. It is indeed more likely to be the case that discrimination on grounds of race or gender will amount to an infringement of dignity and self-respect, though there will be exceptions such as gender-specific changing rooms. Nevertheless, compulsory retirement may well be experienced as an affront to a person’s dignity and self-respect that affects their private lives. It seems to me that the heat generated around compulsory retirement policies is precisely because older workers often feel that they are being cast aside in favour of youth even though they continue to perform their jobs to the highest standard. The reason why compulsory retirement ages are often preferred to performance management is precisely because detailed assessments of performance are almost certainly damaging to a person’s dignity and self-esteem (even though they may ultimately be justifiable). Compulsory retirement may be a device to avoid a more invasive attack on dignity and self-esteem, but that does not prevent it from operating as a signal to employees that they are no longer worthy of being treated as an equal. Of course, evidence that many workers experience compulsory retirement as damaging to their self-respect and private life does not prove that it is sufficient to bring the case within the ambit of Article 8, but it certainly provides support for such a claim.

Even if it is not accepted that compulsory retirement policies involve infringements on a person’s dignity and self-esteem sufficient to bring such cases within the ambit of Article 8, the judicial references in cases such as Denisov v Ukraine to ‘personal development’ in the reasons-based approach to Article 8 reveal, in my view, that at its core Article 8 is regarded by the ECtHR as being concerned with what we might call personal autonomy and in the German Basic Law Article 2 is described as ‘the right to free development of his personality’. The duty of a government is to protect a person’s right to determine how they should lead their own lives (consistently with protecting the same right in others). Similarly, as the late John Gardner argued, anti-discrimination laws such as Article 14 are concerned with the protection of autonomy, for the reason why certain groups need this additional protection is precisely because these protected groups suffer from patterns of adverse treatment by having their access blocked to valuable opportunities, such as jobs and education. What is morally wrong about compulsory retirement is that it denies a valuable opportunity to a person by reference to a criterion that consists of an over-inclusive adverse stereotype about older workers that leads to persistent high levels of unemployment among that group of workers. That wrong may ultimately be justifiable and lawful, if it pursues a legitimate aim in a necessary and appropriate manner, but, contrary to the view of the CICA, it is nevertheless a wrong that needs to be justified.

The CICA concluded its rejection of the idea that compulsory retirement falls within the ambit of Article 8 by making two contestable points that deserve to be challenged. ‘Compulsory retirement on the grounds of age is miles away from the dismissal on the grounds of gender in Boyraz’ (para [33]). On the contrary, the two cases are rather close: both cases concern dismissal on the basis of a personal characteristic over which a person has no control and which may have little bearing on their ability to do the job. Just as Boyraz did not need to have military training to learn how to take care of intruders, so too a few grey hairs and wrinkles does not prevent the police officers from performing their jobs. Both cases are about prejudicial stereotypes. Although sex discrimination may be harder to justify than age discrimination, that does not prevent age discrimination in certain cases from denying a person dignity, self-esteem, and personal development with adverse effects on their private life. The CICA further concluded: ‘A dismissal directed at a particular individual on the ground of that person’s age and on the grounds of consequential lack of capability may engage Article 8 but a blanket retirement policy does not’. As well as maintaining the confusion between the ‘engagement’ of Article 8 and being ‘within the ambit’ of Article 8, in this passage the CICA apparently has the law completely the wrong way around. If someone is dismissed because they lack the capability to perform the job, a court should conclude that there is no objective harm to a person’s dignity and self-respect (though there may be harm to pride), just as there is no harm to a person’s dignity if there is a fair dismissal for proven misconduct. Instead of a blanket rule being less of a problem, it is exactly the kind of problem that needs to be addressed by the law. Blanket rules are often based on inaccurate and derogatory stereotypes and are therefore more likely to be regarded as disproportionate attacks on a person’s dignity, self-respect, and personal development.

I am grateful to Jeffrey Jupp, barrister, for providing me with information about the litigation concerning the compulsory retirement age for the Royal Cayman Island Police service.

Orginally published on the UK Labour Law Blog