Date 12 March 2009
The European Court of Justice (ECJ) has now delivered its decision in respect of the "Heyday" Challenge to UK employers' right to the compulsory retirement of workers on reaching the age of 65. It has found that the UK's compulsory retirement age contained in the Employment Equality (Age) Regulations 2006 (the age discrimination regulations) fall within the scope of the European Equal Treatment Framework Directive. The UK High Court must now decide whether the retirement provisions contained within the age discrimination regulations can be justified by a legitimate aim.
The National Council on Ageing, which operates under the names Heyday and Age Concern, had sought a judicial review of the age discrimination regulations. Heyday argued that by including provisions in the regulations allowing for the compulsory retirement of employees at 65, the Government failed to properly implement the Equal Treatment Framework Directive. Heyday further argued that the defence of justification for direct and indirect age discrimination was unlawful because it did not include a specific list of aims which could justify discrimination, as was stated in the Directive. A large number of UK employment tribunal cases were stayed in relation to compulsory retirement pending the ECJ's decision.
The ECJ found that the compulsory retirement of employees falls within the scope of the Directive. As this constitutes direct discrimination, it must be "justified by legitimate social policy objectives, such as those related to employment policy, the labour market or vocational training". However, it was considered unnecessary to set out a list of the aims that could be used to justify the compulsory retirement age.
The ECJ did not determine the issue of whether compulsory retirement at a certain age could be justified. The UK High Court will now have to decide whether the compulsory retirement of workers at 65 is justified by a legitimate aim within the meaning of the Directive. It will also decide whether the means used to achieve that aim were appropriate and necessary. Whilst it is difficult to predict what the High Court's decision will be, it appears likely that the UK's compulsory retirement age will remain in force for the foreseeable future.
If you would like to discuss any aspect of this article in more detail, please contact Chris Cook of the SA Law Employment Department by email at chris.cook@salaw.com or on 01727 798017.
© SA Law 2009
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