R (on the application of the Incorporated Trustees of the National Council for Ageing (Age Concern England)) v Secretary of State for Business, Enterprise and Regulatory Reform

This case involved an application for judicial review of the Employment Equality (Age) Regulations 2006 (the 2006 Regulations) by the Heyday group, backed by Age Concern. The Heyday group argued that provisions of the 2006 Regulations, which came into force in October 2006 and were intended to transpose into UK law the Equal Treatment Framework Directive 2000/78/EC (the Directive), were incompatible with the Directive. The provisions alleged to be incompatible with the Directive were those provisions dealing with mandatory retirement ages.

At present, as part of the mandatory retirement age clause, employees will be able to request to work beyond the age of 65, but employers do not have to give a reason for refusal. The Heyday group claimed this contravenes European equal rights legislation and that employers should have to give a reason for refusal.

At a hearing on 6 December 2006, the High Court gave permission for the judicial review application to go ahead and agreed to make a preliminary reference to the European Court of Justice (the ECJ) over the question of compatibility. On 24 July 2007 the High Court made an order referring certain questions to the ECJ, including:

  • the scope of the Directive and its application to national rules which deal with the right of employers to dismiss employees of a certain age by reason of retirement; and
  • the justification of direct and indirect discrimination.

The decision of the ECJ is not expected before 2009