The Employment Appeal Tribunal (EAT) has overturned the decision of the Tribunal in the case of Johns v Solent SD Ltd, holding that employees forced to retire at 65 or older under Regulation 30 of the Employment Equality Age Regulations 2006 (the Regulations) may continue to bring claims for age discrimination and unfair dismissal against their employers. The President of the EAT has issued a direction that all claims raising the same issue are to be stayed pending the decision of the ECJ in the Heyday case, in which Heyday, part of the charity Age Concern, has sought judicial review of the Regulations on the basis that they are incompatible with the Equal Treatment Framework Directive. The ECJ’s judgment is expected to be made in 2009 after which the High Court will have to rule on the substance of Heyday’s claim.

In Solent, the claimant brought a claim against her employers for age discrimination and unfair dismissal but accepted that her dismissal was due to compulsory retirement and that the correct and proper procedures had been followed. The Tribunal struck out the claimant’s request to stay the proceedings until the ECJ’s decision in Heyday had been reached on the basis that her claim had a remote prospect of success. The EAT reversed this decision, agreeing to stay the case but giving permission to appeal to the Court of Appeal.

This ruling poses difficulty for employers, as employees can continue to make claims if they feel they have been forced to retire even if the employers have followed UK law. Such actions will be stayed until Heyday is resolved (subject to further clarification from the Court of Appeal in Solent).

View the EAT judgment Microsoft Word Document, 66.5KB