In the above case the EAT stayed a claim of age discrimination and unfair dismissal pending the ECJ’s decision on the legality of the UK default retirement age of 65 (due in 2009). The case is being appealed to the Court of Appeal.

Following this decision the President of the Employment Tribunals announced that all similar cases should be stayed pending the ECJ’s decision. (Although the stay is to be reviewed following the Court of Appeal’s judgement in the above case). Facts: Mrs Johns was required by her employer, Solent SD Limited (Solent), to retire at 71. She accepted that her dismissal was due to compulsory retirement and that Solent had followed the correct procedure. However, Mrs Johns brought claims for unfair dismissal and age discrimination.

At a pre-hearing review, the Tribunal rejected her claims on the basis that employers are entitled to rely on the default retirement age of 65. The Tribunal also refused Mrs Johns’ request to stay proceedings pending the outcome of the ECJ decision in the Heyday case (in which the default retirement age is being challenged as unlawful).

The Tribunal took into account that Heyday’s challenge, and therefore Mrs Johns’ claim had only a remote chance of success. In particular the Tribunal based its findings on the Advocate General’s decision in the Spanish case of Palacios, which held that compulsory retirement clauses contained in collective agreements are lawful.

Mrs Johns appealed against the Tribunal’s decision. The EAT upheld her appeal and allowed her claim to be stayed pending the ECJ’s decision in the Heyday case. In particular, the EAT said that the Tribunal should not have prejudged the ECJ’s decision.

Unfortunately this may well encourage employees who are dismissed as a result of reaching the retirement age to bring claims against their employers for unfair dismissal and age discrimination. It also leaves unwelcome uncertainty about whether employers can safely rely on the default retirement age of 65.

Overall, the outcome of the ECJ’s decision in 2009 depends if the Government can show that the default retirement age is justified. In the meantime by continuing to rely on the default retirement age employers should be aware that there is a risk of employees bringing claims against them, which could be successful.