To mark the 20th anniversary of the EU Employment Framework directive AGE launched a report on how the Directive has been applied and interpreted by EU and national courts. Our report was released on the occasion of the 11th session of the UN Open-Ended Working Group on Ageing (OEWG), which explored challenges older people face in accessing justice and equally enjoying the right to work.
Why this paper?
We are all living longer and healthier lives. Babies born today can expect to live to over 100. Against this positive trend, retiring at age 60 or 65 is neither sustainable, nor necessarily desirable. Active ageing and flexible retirement policies applied across the EU aim to encourage and support longer working lives. But European and national courts still seem to reflect biased and outdated views of the life course and of older people’s abilities to work and do not equally protect our human rights when we are older. Overall, there is not enough public consciousness of how to make the right to work a reality in old age and how to tap on older persons’ potential for the benefit of society as a whole.
The EU Employment Directive covers age as a ground of discrimination, but several lawful exemptions and justifications apply in practice. This permitting a wide range of practices that restrict older people’s right to access or remain in the labour market. Barriers to the equal participation in the labour market include, among others, mandatory retirement, unfavourable working conditions and forced career change beyond a certain age.
National and EU courts still consider age discrimination as less severe compared to other grounds and reflect biases about the ability of older people to work. For example, by recognizing a causal link between age and the ability to perform professional duties, courts ignore scientific evidence and amplify the misconception that old age itself equals frailty and makes us unfit to work. Court decisions are also based on the fallacy that forcing an older person to retire entails that a younger worker is able to enter the labour market.
Denying the right to continue working based on the presumption that older people receive pensions, is a problematic generalisation that ignores the reality of many older people who despite receiving a pension lack adequate means and could lead to economic hardship.
Decisions that accept ageism in the labour market, also leave open the use of age indicators as a basis for policy or decision-making in other aspects of life, even if this harms individuals and entails unfair treatment.
Our analysis builds on our ongoing collaboration with the European Network of Equality Bodies, Equinet, which prepared in 2019 a report identifying trends and themes that have arisen in caselaw with regard to discrimination on the ground of age across Europe.
We therefore conclude that any assessment of an individual’s capacity to perform a job should be based on an individual assessment rather than on stereotypical or age-based assumptions. The mere existence of the possibility to receive state pension should not be used as a justification for the proportionality of mandatory retirement and dismissals. Laws and court decisions need to allow for extending working lives, for gradual transition to retirement or a combination of pension and work. Judiciary and legal professionals must be trained and sensitised on issues of older age, ageism and the multidimensional barriers that older people face in the labour market.
A binding international instrument, such as a UN convention, could catalyse a strong and inclusive interpretation of the universal right to work by courts, just like the Convention on the Rights of Persons with Disabilities has done in the case of persons with disabilities. It would make it increasingly difficult to tolerate practices that are based on stereotypes and attribute less value to older workers or contributions made in old age and spell out concrete changes that are necessary for everyone to equally enjoy the right to work.
- Read our report on the EU Employment Framework Directive
- Read our response to the EU consultation on the EU Employment Directive – 20 years of fighting age discrimination, and still many gaps to fill
- Read why we need a UN convention on the rights of older people