In our March 2009 update we noted that the European Court of Justice (ECJ) had given its judgment in what had become known as the “Heyday” case and which was concerned with whether a default retirement age of 65 could be justified in principle in the light of the age discrimination provisions. The ECJ held that European member states are not required in national legislation to specify the differences in treatment that amount to justification and that the test of justification is effectively the same for direct and indirect discrimination. National legislation may provide that “difference of treatment on grounds of age”, such as a default retirement age of 65, as in this case, is justified if it is a proportionate means to achieve a legitimate aim. The case was returned to the High Court for a decision on whether the default retirement age is justified in the UK.

The High Court has now ruled that it is legal for employers to force employees to retire at age 65 and that the default retirement age is compliant with EC law, although the judge did mention that there was a “compelling case” for a legislative change in the compulsory retirement age.

Comment: while employers generally have welcomed this judgment as it allows them to dismiss older workers purely on grounds of age, it is likely to be a temporary respite. The Government has announced that it will bring forward its proposed review of the default retirement age to 2010. It is likely that, following the review, the default retirement age may be removed completely as it is considered by many to be irrelevant in today’s economic and social climate.