ECJ ruling on heyday
UK Courts must decide whether default retirement age is lawful
The European Court of Justice has handed down its judgment in the case of The Incorporated Trustees of the National Council on Ageing (Age Concern England) v. Secretary of State for Business, Enterprise and Regulatory Reform (otherwise known as Heyday).
The Heyday case involved a challenge to the UK's Employment Equality (Age) Regulations 2006 (the Age Discrimination Regulations), in particular the provision which allows employers to require employees to retire at a default retirement age (currently 65), on the basis that it is contrary to the Equal Treatment Directive.
The ECJ have concurred with the Advocate-General's opinion which was delivered in September 2008 and have confirmed that the Age Discrimination Regulations are not contrary to the Equal Treatment Directive and that the default retirement age is permissible, if it can be justified as a "proportionate means of achieving a legitimate aim". This question must be decided by the UK courts and the matter will now be referred back to the High Court.
The fight is certainly not over as campaigners for Age Concern will certainly keep up the pressure for a removal or increase in the default retirement age. Interestingly, in a debate tabled in the House of Lords in January 2009 there was some level of support for the abolition of the default retirement age. Whether this impacts upon the High Court's decision given that the case may well return to the House of Lords remains to be seen.
In the meantime, we would advise employers to continue to abide by the statutory retirement provisions for employees who are approaching or have passed their 65th birthday.
For further details, please contact Jayne Holliday, a member of our Employment team on 01384 364130.
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