Heyday, a membership organisation supported by Age Concern, has brought a High Court judicial review challenge to the lawfulness of the statutory retirement procedures contained in the Employment Equality (Age) Regulations. In December 2006 the High Court referred certain questions to the European Court of Justice including whether the EU Equal Treatment Framework Directive applies to statutory retirement procedures generally.

The Advocate General gave an opinion on 15 February 2007 in the European Court of Justice case of Palacios de la Villa –v- Cortefiel Servicios SA relying heavily on Recital 14 of the Directive to suggest that national provisions laying down retirement ages were outside of the scope of the Directive. Advocate Generals’ opinions are often but not always followed by the European Court of Justice.

In Johns –v- Solent SD Limited the Southampton Employment Tribunal struck out claims for unfair dismissal and unlawful age discrimination arising from compulsory retirement and refused a request to stay proceedings pending the outcome of the Heyday case. The Employment Tribunal relied on the Advocate General’s opinion in Palacios in accepting suggestions that Mrs Johns case (and indeed the Heyday case) had limited chances of success. The Employment Tribunal also accepted arguments that there would be an injustice to the employer of having proceedings hanging over it for some years.

However, when the European Court of Justice recently gave final judgment in Palacios it stated that retirement provisions are not automatically excluded from the Directive’s scope and are subject to a test of objective justification.

The Employment Appeal Tribunal has now overturned the Employment Tribunal’s decision in Johns and has held that such claims should be stayed (put on hold) until the outcome of the Heyday reference to the European Court of Justice.

The Employment Appeal Tribunal’s full judgment is not yet available but the President of the Employment Tribunals has already issued a Practice Direction that all current and future claims concerning Regulation 30 of the Regulations be stayed pending the European Court of Justice’s decision in the Heyday case.

The Practice Direction will be reviewed when judgment is given by the Court of Appeal on the pending appeal by Solent SD Limited, probably in early to mid 2008. The Heyday reference may not return from the European Court of Justice until 2009. That case will then proceed before the High Court and may well be referred back to the European Court of Justice again.