The ECJ has ruled that the UK default retirement age is covered by EU age discrimination law but can in theory be justified by legitimate social policy objectives. These could relate to employment policy, the labour market or vocational training, but the provision must be appropriate and necessary to achieve the relevant objective.
The ECJ emphasised that Member States must establish the legitimacy of their aim to a high standard of proof and will need evidence which is more than mere generalisations about the ability of a specific measure to contribute to the aim. The Heyday case will now return to the High Court to decide whether the government in fact has sufficient evidence.
The government has committed to review the default retirement age in 2011. In a House of Lords debate on 13 January 2009 it resisted calls to review the provision earlier or commit to its abolition. The government also admitted in that debate that the evidence it used in support of the provision was "almost by definition a relatively limited evidence base". Employers who have relied on the default retirement age will be hoping it provides sufficient justification to convince the Court.
In the meantime, tribunals will continue to stay retirement age discrimination claims. (The Incorporated Trustees of the National Council of Ageing (Age Concern England) v Secretary of State for BERR, known as the Heyday challenge, ECJ).