On 6th December 2006 in the High Court, Mr Justice Davis referred to the ECJ an application made in July 2006 by Heyday, a lobby group operated by the National Council on Ageing, seeking a judicial review of the Age Regulations. Heyday are looking for a declaration that the Age Regulations as they currently stand do not comply fully with the European Directive outlawing age discrimination. If successful, the Age Regulations will need to be amended, not only to extend protection to workers aged over 65, but also to force employers to provide reasons if they do not allow an employee over 65 to continue working. Under the current Regulations, reasons do not have to be given.

The parties are now working on submissions and the questions to be referred are likely to be finalised in early 2007. It is notable that the Government did not contest Heyday’s proposal.

Although the ECJ will not give its judgement for some time, employers should bear in mind its possible impact on future or pending claims. Heyday have advised individuals not to delay making a claim (because of time limitation issues) but to request that the proceedings be stayed pending the ECJ’s ruling. While claims of indirect age discrimination and direct discrimination without claimed justification should be unaffected, tribunals may stay claims in relation to the following: 

  • Retirement discrimination
  • Refusal of employment to applicants over 65
  • Claims of direct age discrimination with a defence of justification