On 5 March 2014, the Board of Equal Treatment determined that the mandatory retirement age of priests, bishops and rural deans under section 43 a of the Public Servants Act does not constitute unlawful discrimination.
In 2008, the Public Servants Act was amended abolishing the general mandatory retirement age of public servants with reference to the rules of the Non-Discrimination Act and the underlying Employment Equality Directive. However, a mandatory retirement age of 70 for priests, bishops and rural deans was maintained under section 43 a of the Act.
In the present case, a priest was dismissed at the end of the month when he turned 70. He complained to the Board of Equal Treatment claiming that the provision on which the mandatory retirement age is based is contrary to the prohibition against age discrimination of the Non-Discrimination Act.
He claimed that the mere fact that a priest turns 70 does not mean that he or she becomes unsuited for the job. Instead of having a mandatory retirement age, termination should be considered based on an individual assessment as on most of the labour market.
THE BOARD'S COMMENTS AND CONCLUSION
The Board states that the case concerns direct discrimination. The Board also states that both the Non-Discrimination Act, the underlying directive and case law show that you can make an exemption from the prohibition against discrimination due to age.
Such exemption requires, however, that the discrimination is justified by a legitimate objective, and that the means for achieving the objective are appropriate and necessary.
It appears from the legislative history from 2008 concerning the amendment of the Public Servants Act that the reason for keeping a mandatory retirement age for priests, bishops and rural deans is to ensure a consideration for the special terms and conditions of this group of public servants, including that the church council's controlling influence in case of appointment of priests is not made illusory. Further, the age limit was maintained to prevent further disagreement between the priests and the church councils, which could result in a significant obstruction of the development of religious life.
The Board of Equal Treatment found no reason to set aside the assessment of the Danish parliament that this is a legitimate object as the Board of Equal Treatment notes:
"The Board finds no basis of setting aside the assessment of the Danish parliament that these objectives are sufficiently weighty and legitimate to justify the exemption from the act's prohibition against discrimination due to age, and that the mandatory retirement age is an appropriate and necessary means to achieve these objectives."
The Board of Equal Treatment did therefore not find in favour of the claimant.
The Board of Equal Treatment rarely makes decisions in fundamental cases like the present, but it is not surprising that as an administrative board, the Board of Equal Treatment does not set aside an assessment made by the legislative power, which was specifically discussed in connection with the amendment of the Public Servants Act in 2008.
At the same time, the decision reflects that a specific assessment must be made as to whether sufficiently weighty and legitimate objectives exist to justify the exemption from the act's prohibition against discrimination due to age, and whether the mandatory retirement age is an appropriate and necessary means to achieve these objectives. The decision is therefore not a carte blanche for termination due to age.
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