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Marginalising the objective justification defence in retirement cases?

Mark Butler (Lancaster University, Bailrigg, UK)

International Journal of Law and Management

ISSN: 1754-243X

Article publication date: 13 September 2011

Abstract

Purpose

The purpose of this paper is to provide an analytical review of the key jurisprudence of the European Court and to present the argument that a more conservative approach is being adopted when considering the objective justification defence in dismissals by reason of retirement.

Design/methodology/approach

A review approach is adopted in the paper, with a primary focus on recent European Court decisions, whilst appreciating existing literature on the position of retirement cases. Attempts were made to draw together the evidence which suggests a shift in approach to objective justification in this context.

Findings

The paper reveals that the approach being adopted in retirement cases appears to be devaluing the age discrimination protections, through allowing individual, subjective reasons to justify less favourable treatment, despite the express wording of the Parent Directive precluding such an approach. It is highlighted that this could have damaging practical implications by placing a much lighter burden on employers when arguing objective justification of retirement dismissals.

Research limitations/implications

The paper's main limitation is that it only considers case law from the European Court, without considering the approach adopted in any of the EU member states, where the eventual approach will be decided. However, this paper provides useful analysis of the approach being adopted in the European Court which is the ultimate interpreter of EU law, whilst questioning whether it is the correct approach.

Originality/value

The paper is the first to examine the shifting approach to objective justification in retirement cases.

Keywords

Citation

Butler, M. (2011), "Marginalising the objective justification defence in retirement cases?", International Journal of Law and Management, Vol. 53 No. 5, pp. 375-388. https://doi.org/10.1108/17542431111166359

Publisher

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Emerald Group Publishing Limited

Copyright © 2011, Emerald Group Publishing Limited