Weekly dilemma: Retirement age in international airspace

Can you tell me how to deal with the issue of retirement age for airline pilots, where several countries do not allow pilots over the age of 60 to operate as captain in their airspace? We have a request from a pilot approaching 60 to work beyond this age. His birthday is in October.

Assuming that your pilots are employed by your organisation at an establishment in the UK, they will be covered by the draft Employment Equality (Age) Regulations 2006 when they come into force on 1 October 2006.

The regulations set a default retirement age of 65. However, after 1 October 2006, employers will still be able to set a lower retirement age if they can show this to be objectively justified.

You will need to show that doing so is “a proportionate means of achieving a legitimate aim”. The DTI Guidance on this states that a legitimate aim “must correspond with a real need on the part of the employer”. To determine whether this is a proportionate means, setting a retirement age of 60 would have to be weighed up against its discriminatory effects.

If your organisation would be acting unlawfully by failing to comply with other countries’ airspace age restrictions, it may be that setting a retirement age of 60 is a proportionate means of achieving a legitimate aim – the organisation’s legitimate aim being to operate lawfully at
all times.

However, you would need to show that setting a retirement age below the default retirement age is a proportionate means of achieving such an aim. Before doing so, you should, therefore, investigate whether pilots over the age of 60 could be transferred to flights which operate on routes where there are no airspace age restrictions.

If some flights travel through both age-restricted and non age-restricted airspace, you should explore the possibility of whether another pilot aged below 60 could stand in and “operate as captain” in the age-restricted airspace.

Jonathan Maude, head of employment department, Manches

Each week we ask the experts to answer your legal dilemmas. If you have a legal question or dilemma, e-mail dawn.spalding@rbi.co.uk


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