It is not unlawful age discrimination for an employer to dismiss an employee on the grounds of retirement at age 65 or over. The High Court has ruled that the UK regulation permitting this does not breach EU law. The decision is not being appealed so, until the government's review next year, employers can continue to rely on the regulation to retire employees.
UK regulations provide that it is not unlawful age discrimination to retire an employee because they have reached a normal retirement age of 65 or over or, if there is no normal retirement age, 65 (provided the statutory retirement procedure is followed). Employers can lawfully retire employees at an earlier age only if this can be justified (likely to be rare).
In February 2009 the ECJ ruled in the Heyday case that the UK default retirement age was covered by EU age discrimination law but could theoretically be justified by legitimate social policy objectives. It sent the case back to the High Court to decide whether in fact it was justified. Just before the hearing, the government announced that it was moving forward its planned review of the default retirement age from 2011 to early 2010.
The High Court has now ruled that the default retirement age was indeed justified when it was introduced – but only just. It indicated that, had the regulations been adopted for the first time in 2009, or had the government not moved forward its review, the decision would have gone the other way.
It is therefore highly unlikely that the default retirement age of 65 will survive the government's review next year. The government's approach to the civil service retirement age (due to be dropped from April 2010) suggests it could well do away with the default retirement age altogether.
The Court also confirmed that the UK regulation allowing employers to justify direct age discrimination does not breach EU law. (Age UK (known as Heyday) v Secretary of State for Business, Innovation & Skills , HC)