The ECJ is asked to rule on whether the Framework Directive covers national rules, such as the Employment Equality (Age) Regulations 2006, which permit employers to dismiss employees aged 65 or over by reason of retirement.

The Directive states that it "shall be without prejudice to national provisions setting down retirement ages". The National Council on Ageing, operating as the Heyday group, argues that this only allows Member States to leave existing provisions relating to retirement ages in place, not to introduce new provisions relating to retirement ages as the UK arguably did with the Age Regulations. Further, Heyday argues that retirement dismissals are not objectively justified as a proportionate means of achieving a legitimate aim (such as workforce planning) as it cannot be proportionate to exclude all retirement dismissals from the scope of the Regulations and the Government's proposed justifications are not sufficiently specific to meet the standard required by law.

Guidance is requested from the ECJ on the justification defence and the extent to which it differs in relation to direct and indirect discrimination. The case is unlikely to be heard until next year and judgment may not be issued until 2009. (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 - known as the "Heyday challenge")

We are still awaiting the ECJ decision on a similar case in which the Advocate General's opinion was that the Framework Directive did not preclude a national law permitting compulsory retirement ages in collective agreements (Palacios de la Villa v Cortefiel Servicios SA (C-411/05)

It is, perhaps, unlikely given the AG's opinion on the similar case of Palacios, that the ECJ will rule that the UK retirement provisions are unlawful but such an outcome is possible. Some private companies have already abolished a mandatory retirement age. A report by the Employers Forum on Age states that employers who do not enforce a fixed retirement age are happy with their decision. The report highlights the benefits of lower expenditure on the retirement process as well as the lower risk of legal challenge. (See here) www.efa.org.uk/publications/default.asp. In the meantime, the retirement provisions of the Age Regulations still stand and tribunals seem reluctant to stay age discrimination claims pending the outcome of the Heyday challenge (see Johns v Solent SD Ltd).