The European Court of Justice (ECJ) has today given its judgment in the Heyday Challenge to UK Age Discrimination laws and ruled that the compulsory retirement age of 65 is capable of being justified under EC Law.  


Unfortunately the ECJ ruling is not the end of this long running case which must now return to the UK High Court to rule on whether the compulsory provisions in the UK Age Regulations can be objectively justified.  


As detailed on our previous newsflash of 24 September 2008, 'Heyday' (an organisation backed by Age Concern) brought Judicial Review proceedings in the High Court in July 2006 challenging Regulation 30 of the Employment Equality (Age) Regulations 2006 ("the Regulations"). The Regulation allows employers to set a mandatory retirement age of 65 and provides that employees age 65 or over cannot challenge their dismissal if the reason for it is retirement.  

The High Court stayed the Judicial Review proceedings and referred certain questions about the legal basis of Heyday's challenge to the ECJ. Many cases brought by employees challenging their dismissal for retirement have been stayed by Employment Tribunals pending the outcome of this High Court case.  

The ECJ has now followed the Advocate General's Opinion given in September 2008 and held that the Regulations do not breach the Equal Treatment Framework Directive (from which the Regulations were implemented).  

The ECJ held that in principle it does allow for national laws to permit a difference in treatment on the grounds of age (i.e. compulsory retirement at 65) provided such a rule can be objectively justified.  

The case will now return to the High Court for them to rule on whether the Regulations can be objectively justified.  

Although it is likely that the High Court will find that the compulsory retirement provisions in the Regulations can be objectively justified, employers should still be aware that until the High Court's decision, employees may still bring unfair dismissal claims following being retired at 65 on the basis of the arguments put forward in the Heyday Challenge. In such circumstances the Employment Tribunal will continue to stay such claims until the High Court gives its judgment.  

The ECJ also dismissed Heyday's challenge to the Regulations in so far as they allow justification of discrimination based on age. Heyday challenged on the grounds that the 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 ECJ ruled that the direct Equal Treatment Framework Directive does not require member states to draw up a specific list of differences in treatment which may be justified.