The Court of Appeal in Jonhs v Solvent has confirmed that age discrimination claims brought by an employee should be stayed until the European Court of Justice (ECJ) makes a decision on in the Heyday case.

The ECJ heard the Heyday case on 2 July 2008. It is a challenge to the UK’s mandatory retirement age of 65 (see EPB bulletin 25 June 2008 for background on the questions being referred).

The Johns v Solvent case involves a similar challenge. The claimant accepted that the correct procedure had been followed under the Employment Equality (Age) Regulations 2006 but requested for her case to be stayed pending the decision of the ECJ in the Heyday case.

The Court of Appeal determined that case should be stayed and Smith LJ made the following comments:

  • even if the employment tribunal had correctly applied the test as to whether the claim had a reasonable prospect of success, the decision to strike out the claim was perverse because the reasoning is based on unwarranted speculation about the outcome of the Heyday case;
  • if Heyday succeeds the claimant’s case has a reasonable prospect of success and the claim cannot be struck out;
  • the balance of prejudice weighs heavily in favour of staying the claims.