Ms Meister, a Russian national, applied for the post of 'experienced software developer' with Speech Design. Her application was rejected without an interview. It was not disputed that her level of experience corresponded with the requirements of the post. She brought discrimination claims on ground of her sex, age and ethnic origin. She also claimed that production of the successful candidate's file would show that she (Meister) was more qualified than that person. However the CJEU held that Article 8(1) of the EU Race Equality Directive (No.2000/43), Article 10(1) of the EU Equal Treatment Framework Directive (No.2000/78) and Article 19(1) of the EU Equal Treatment Directive (No.2006/54) were not to be interpreted as entitling a person in Ms Meister's position to have access to the successful candidate's file. On the other hand, it must be ensured that a refusal of disclosure by the employer did not compromise the objective of these Directives. Therefore it could not be ruled out that an employer's refusal to grant access to the information may be one of the factors to take into account in the context of establishing facts from which it may be presumed that there has been direct or in direct discrimination. Consideration of those factors (which, the Court added, might also include, in the present case, the fact that Meister was at least equally qualified and was not even called for interview) was a matter for the National Court.
FIRMS WIN RIGHT TO RETIRE WORKERS AT 65
2 May 2012
Older workers can be forced to retire at 65 if their employers show it is in the “public interest”, despite the Government scrapping the default retirement age, the Supreme Court ruled yesterday.
The Telegraph reports:
Companies have been told that they can still dismiss employees on the grounds of age as long as they conform to guidelines laid down by the court. They have been told that each case must have a wider justification than the commercial interest of the business.
Legal experts said the decision gave the go-ahead to firms to get rid of employees at 65, just months after the practice supposedly became unlawful.
Yesterday’s ruling concerned the case of Leslie Seldon, a partner in a Kent law firm, who claimed he had been treated unfairly when compulsorily retired at 65. He lost his appeal but had his case sent back to the employment tribunal that first heard it for reconsideration on the grounds of the new guidelines.
The case involved an interpretation of a rule that allows employers to justify age discrimination if they can prove it is a “proportionate means of achieving a legitimate aim”.
Mr Seldon’s case was dismissed, but the court set out new guidelines meaning that companies must consider a range of alternatives to retiring an employee and be able to show a specific public interest justification in each case where retirement is imposed. These justifications could include making it easier to recruit younger workers, being able to promote middle management, and being able to plan for the future and train others, as well as being able to end the careers of older workers with “dignity”. Companies will have to show these aims are legitimate and genuinely being pursued.
They will also have to show that they have considered other options, such as flexible working hours or allowing employees to stay on for a short period.
CIPP Policy News Journal
12/04/2013, Page 38 of 362
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