Age discrimination - claims involving retirement age

Following the decision of the EAT in the case of Johns v Solent SD Limited, the EAT in England and Wales has issued a direction staying all age discrimination claims involving issues of retirement until the European Court of Justice (ECJ) reaches a decision in the Heyday case.


Heyday challenge: as a result of action by Heyday, the membership organisation for people in or nearing retirement, a reference to the ECJ has been made for a determination on whether the UK has failed to properly implement the EU directive by excluding people over the age of 65 from protection on retirement. The case has been referred to the ECJ by the High Court and a decision is not expected until late 2008 or early 2009.

Johns v Solent: Mrs Johns brought claims of unfair dismissal and age discrimination after being retired against her wishes by her employer, Solent SD Limited. Solent had followed the correct statutory retirement procedure and Mrs Johns accepted that, under UK law, her retirement was therefore lawful. However she argued that the statutory default age is in itself unlawful and that her case should be put on hold pending determination of the Heyday case.

The current position is that private sector employers only have to comply with national laws and that EU directives are not directly binding on them. Surprisingly, however, as Mrs Jones was employed in the private sector, the EAT decided that her claim should be stayed until the outcome of the Heyday case is known. The President of the Tribunals in England and Wales subsequently issued a direction that all current and future claims relating to the legality of dismissals at the default retirement age must be stayed pending the decision of the ECJ in the Heyday case.

Impact on employers

If the Heyday case is successful, a number of issues will remain to be resolved through the courts or by further legislation in the UK.

In the meantime, employers are advised that continuing to retire employees at age 65 could, even where the correct statutory retirement procedure is followed, result in exposure to claims for age discrimination if the Heyday decision is successful.