European approval for default retirement age of 65.

The Advocate General of the European Court of Justice has given his opinion in the UK case of Age Concern England v BERR (the Heyday case).

In the UK, the Employment Equality (Age) Regulations 2006 (‘the Age Regulations’) make age discrimination illegal. However, Reg. 30 of the Age Regulations provides that it is not age discrimination to dismiss an employee at or over 65 where the reason for dismissal is retirement.

In this challenge to the ECJ, Age Concern argued that Reg. 30 was not a proper implementation of the European Equal Treatment Directive. The Directive does allow differences in treatment on grounds of age but only where they are ‘objectively and reasonably justified by a legitimate aim, including employment policy, labour market and training objectives’.

The Advocate General has now given it as his opinion that the Equal Treatment Directive is applicable to the Age Regulations but does not prevent them from providing, in general terms for a default retirement age of 65. Any such dismissal will simply have to be justified, using the criteria set out in the Equal Treatment Directive.

Points to note –

  • Although this is not a judgment of the ECJ, the Court will usually follow the advice of the Advocate General.
  • This decision supports Reg. 30 of the Age Regulations and allows employers to retire employees at the age of 65. However, the dismissal – just like all other acts of potentially unlawful discrimination – must be objectively and reasonably justified.
  • Employers must take care to follow the procedures for dismissal of employees aged 65 or over where the reason for dismissal is retirement set out in Section 98Z Employment Rights Act 1996 to avoid such a dismissal being unfair.