Mandatory retirement: ILO Administrative Tribunal confirms conservative approach
By Frédéric Dopagne, Saskia Lemeire and Bert Theeuwes
Imposing a mandatory retirement age is considered discriminatory in an increasing number of countries. A number of countries have even completely abolished the mandatory retirement age (e.g. the UK, Denmark, Poland, Australia, Canada, New Zealand and the US), while in other countries, the possibility of imposing a retirement age is increasingly curtailed by regulations and case law. Article 6(1) of the 2000/78/EC Directive, for instance, makes the maintenance of a mandatory retirement age in EU member states subject to certain conditions. In order to be non-discriminatory, the imposed retirement age should be “objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labor market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.” Several judgments from the European Court of Justice clarified these requirements.
This new approach to mandatory retirement apparently did not yet find its way to international civil servants of international organizations.
Most staff regulations of international organizations provide that a staff member automatically retires as soon as a certain age is reached - usually the age of 65. However, some staff regulations explicitly provide for the possibility to postpone retirement. This is merely a possibility, however, and the staff member must request and motivate this postponement (see, for example, Service Regulation 54(1) of the European Patent Organization; Staff Regulation 4.05 of the International Atomic Energy Agency and Staff Regulation 9.5 of the United Nations Educational, Scientific and Cultural Organization).
Only few staff regulations set out the grounds on which the hierarchical superior is required to approve the request, or vice versa, may reject the request. In absence of such objective guidelines, the hierarchical superior is free to decide whether or not to grant the request. As a consequence, several staff members whose pension deferral requests have been rejected, attempt to challenge this decision.
However, challenging such decisions before the ILO Administrative Tribunal (hereafter: “ILOAT”) appears to have little chance of success. The ILOAT consistently holds that a decision to retain an official beyond the normal retirement age, is an “exceptional measure” over which the executive head of an organization exercises wide discretion. Such a decision is therefore subject to only limited review by the ILOAT, which will interfere only if the decision was taken without authority, if a rule of form or procedure was breached, if it was based on a mistake of fact or of law, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority (Judgement No. 4254, para 3; Judgment No. 3285, para 10). As stated by the ILOAT: “To successfully impugn a discretionary decision, a complainant must demonstrate some fundamental flaw in the decision-making process.” (Judgment No. 3317)
Some decisions to reject a pension deferral request are set aside because they are, for instance, not motivated (Judgment No. 4259); based on a confidential document (Judgment No. 4254); or constitute an act of retaliation on the part of the hierarchical superior (Judgment No. 2845). There is even case law that considers as discriminatory, the situation, in which a staff member’s application is rejected after a very strict analysis, while several other members of the same organization easily obtained a prolongment of their employment (Judgment No. 3934). In the majority of the judgments on this topic, however, the ILOAT has dismissed the complaint.
It is remarkable that these judgments never question the mandatory retirement age as such, and never mention age discrimination in this regard. While age discrimination is precisely the reason why more and more national governments and companies (have to) deal with the retirement age in a more flexible way, this tendency does not yet seem to have found its way to the staff regulations of international organizations and the case law resulting from the application of these regulations. Whereas ILOAT plays (or played) a pioneering role in eradicating various forms of discrimination within international organizations, it nowadays still appears to be reluctant to judge that a mandatory retirement age – including the often inadequately regulated possibility of postponement – constitutes discrimination. And as the Tribunal’s consistent conservative approach does not encourage international organizations to review their staff regulations, it might take a long time before international civil servants will see any changing trend emerge.