The Incorporated Trustees of the National Council for Ageing (Age Concern) v Secretary of State for Business, Enterprise and Regulatory Reform – European Court of Justice

The Challenge

The UK's Employment Equality (Age) Regulations 2006 ("the Age Regulations") allow employers to use mandatory retirement ages and compulsorily retire employees.

Heyday, a membership organisation created by Age Concern, brought Judicial Review proceedings in the High Court, arguing that the compulsory retirement provisions of the Age Regulations are contrary to the EC Directive designed to outlaw age discrimination.

The High Court referred the case to the European Court of Justice ("the ECJ") for a preliminary ruling on the scope of the EC Directive.

The Decision

The ECJ has delivered its highly anticipated Judgment and found that this aspect of the Age Regulations falls within the scope of the Directive, and is therefore potentially lawful. However, as the compulsory retirement provisions directly discriminate against the workforce on grounds of age, they must be objectively and reasonably justified on a national level, by a legitimate aim of the Member State in question.

The ECJ did not answer the question of whether the UK's compulsory retirement provisions are in fact justified, which is a matter for the national courts.

Outcome

It now falls upon the UK's High Court to determine whether the compulsory retirement regime can be objectively and reasonably justified by a legitimate aim, and whether the means adopted by the Government were appropriate and necessary to achieve that aim.

In its decision, the ECJ issued a strong warning that Member States will be expected to establish the legitimacy of the aim relied upon to a high standard of proof. Mere generalisations in this regard will not therefore suffice. It remains to be seen what evidence the UK Government will rely upon in this regard and this is expected to be the pivotal point of this case.

According to the Employment Tribunal Service, hundreds of cases involving people claiming compensation after being forced to retire at 65 have been stayed, pending the outcome of these proceedings