R (on the application of the Incorporated Trustees of the National Council on Ageing) ("Heyday") v Secretary of State for Trade and Industry – A-G Opinion

The Employment Equality (Age) Regulations 2006 ("the Age Regulations"), which came into force on 1 October 2006, allow employers to use mandatory retirement ages and compulsorily retire employees at the age of 65 or above.

Heyday (a membership organisation created by Age Concern) brought Judicial Review proceedings in the High Court challenging this aspect of the Age Regulations. They argued that the default retirement age of 65 was unlawful and that setting an age limit was discriminatory, as many people of that age are still willing and able to work beyond these limits. Heyday considered the Age Regulations to contradict key provisions of EU law. The Court referred the case to the European Court of Justice for a preliminary ruling on the interpretation of the EC Equal Treatment Framework Directive, which gave rise to the UK's Age Regulations.

On 23 September 2008, the Advocate-General published his opinion. Though not binding on the ECJ, the opinion is often indicative of the ECJ's likely decision.

Rejecting Heyday's contention that the Age Regulations are contrary to EU rules on age discrimination, the Advocate-General concluded that the practice of dismissing employees aged 65 or over – provided that the reason for the dismissal is retirement – can, in principle, be justified. If the ECJ agrees, it will then be a matter for the UK's National Courts to determine whether or not the compulsory retirement regime set out in the Age Regulations can be objectively and reasonably justified.

According to the Employment Tribunal Service, approximately 260 cases involving people claiming compensation after being forced to retire at 65, have been stayed pending the outcome of these proceedings. The ECJ's ruling is expected to be delivered next year.