In September, the Attorney General of the European Court of Justice (ECJ) gave an opinion on Heyday’s legal challenge to the UK’s default mandatory retirement age. Heyday is an organisation launched by the charity Age Concern which offers services to people approaching retirement and to those who have already retired.

The crux of the Attorney General’s opinion is that it is open to member states to have a national default retirement age. However, member states will still need to objectively justify this as a “legitimate aim relating to employment policy and the labour market”. Any measures used to achieve that aim must be appropriate.

The matter will now go to the ECJ and it is possible that the ECJ will not agree with the opinion. Even if the ECJ’s ruling is consistent with the opinion, the case will be referred back to the national courts where it will be up to a UK judge to determine whether having a national default retirement age of 65 is objectively justifiable, and whether it is necessary for the purpose of achieving a legitimate aim.

We may have to wait some months until the ECJ ruling is given. In the meantime, age discrimination claims in the employment tribunal are stayed pending that judgment. This leaves employers in limbo since it is not entirely clear whether their practices are compliant with the law. In the meantime, a policy of waiting and carefuly considering whether decisions are objectively justified seems to be the safest course for employers to take.