News

The Advocate General to the European Court of Justice (ECJ) has handed down his Opinion that the Heyday challenge to UK age discrimination laws in relation to the compulsory retirement age of 65 should be rejected.

Implications

Unfortunately there will remain uncertainty about the legality of certain parts of the UK Regulations for some time to come as the Advocate General's opinion is not binding on the ECJ. It is, however, usually followed in most cases and is a good indication of the direction in which the ECJ will rule. Cases will however, remain stayed pending the ECJ decision.

Details

As detailed in our news flashes of 16 August 2007 and 19 October 2007, "Heyday" (an organisation backed by Age Concern) is fighting a case against the Government in an attempt to overturn that part of the Employment Equality (Age) Regulations 2006 ("the UK Regulations") which allows employers to:

  • set a mandatory retirement age of 65; and
  • justify age discrimination as a 'proportionate means of achieving a legitimate aim'.

If Heyday is successful employers would not be able to lawfully retire employees at age 65 or over and it would be very difficult to justify discrimination.

In order to make its decision on the case, the High Court decided in December 2006 to refer the case to the ECJ for its judgment on the above issues.

The Advocate General's opinion to the ECJ was to dismiss the Heyday challenge. He considered that the UK Regulations do not breach the Equal Treatment Framework Directive (from which the UK Regulations were implemented). He considered that the Directive allows the UK Regulations to enable employers to dismiss someone by reason of compulsory retirement at 65 provided that this can be objectively justified (and it will be for the High Court in the UK to then determine this once the ECJ has given its decision).

Although the Advocate General's opinion is not binding on the ECJ, this seems to be following the trend of other ECJ cases, for example, in the Spanish case of Palacios v Cortefiel Servicios SA [2007] the Spanish court referred the question of whether the Spanish law implementing the Directive for compulsory retirement of over 65s was discriminatory. The Advocate General gave an opinion that it was not, and the ECJ agreed. The Advocate General has directly referred to the reasoning behind the decision of the ECJ in Palacios as his reason for his opinion in relation to the UK Regulations. As such, it is highly likely that the ECJ will rule against Heyday.

In the meantime, employers should be aware that employees may still claim unfair dismissal, following being retired at 65, on the basis of the arguments put forward in the Heyday challenge. In such circumstances, a Tribunal will then stay such claim until the ECJ gives its judgment.

The Advocate General also expressed his opinion that the ECJ should dismiss Heyday's challenge to the UK Regulations in so far as they allow justification of discrimination based on age. Heyday challenged on the grounds that the UK Regulations did not adequately implement the Directive as they were not precise enough to provide guidance on situations in which discrimination will be justified. The Advocate General's opinion was that it would be "arguably impossible" to set out or list the differences in treatment that are justifiable and to do so would unduly restrict the scope of the justification defence.