The Advocate General of the European Court of Justice has recently handed down his opinion in the case concerning compulsory retirement, known as the Heyday appeal. He recommends that the European Court of Justice dismiss Age Concern's challenges to the lawfulness of regulations 3 and 30 of the Employment Equality (Age Discrimination) Regulations 2006 (the Age Regulations), thus retaining the current UK legislation allowing compulsory retirement.

The Age Regulations came into force on 1 October 2006. They prohibit direct discrimination, indirect discrimination and harassment on the grounds of age. One exception to this is that any dismissal of a person at or over the age of 65 where the reason for the dismissal is retirement shall not constitute discrimination on grounds of age (Regulation 30). Effectively this creates a national default retirement age. Employees can request to work beyond that age. Age Concern, who brought the appeal, argue that a compulsory retirement age is contrary to the EU framework directive on equal treatment in employment (the Directive). They also claim that allowing justification of direct discrimination claims extends beyond the Directive.

The main recommendations by the Advocate General are that the ECJ should rule that:

  • the Directive is applicable to national rules, such as the Age Regulations, which permit employers to dismiss employees aged 65 or over by reason of retirement
  • it is legitimate to allow a general justification defence, and it is not necessary for the Regulations to define specific categories of conduct which can be justified
  • Regulation 30 can in principle be justified provided that the regulation is objectively and reasonably justified within the context of national law by a legitimate aim relating to employment policy and the labour market and it is not apparent that the means put in place to achieve that aim of public interest are inappropriate and unnecessary for the purpose.

An Advocate General's opinion is not binding upon the ECJ, although it is followed by the ECJ in the majority of, although not all, cases. The judgment of the full ECJ is expected by the end of the year. The judgment will be of great importance as there are a number of cases pending before the employment tribunal whose outcome is dependant upon the court's decision.

For more information on the case: Employment highlights October 2008