Johns v Solent SD Ltd (Employment Tribunal)

An Employment Tribunal refused to stay a claim of age discrimination and unfair dismissal pending the result of the judicial review challenge by the campaign group Heyday to the default retirement age of 65, which was introduced by the Employment Equality (Age) Regulations 2006. The judicial review itself has referred the matter to the European Court of Justice, though the case is not expected to be heard until 2009.

The request for a stay of proceedings was opposed on the basis of the opinion of the Advocate General in the European Court of Justice, in the case of Felix Palacios de la Villa v Cortefiel Servicios SA, that the principle of non discrimination on the grounds of age, set out in Article 2(1) of the Equal Treatment Framework Directive does not apply to national laws which set retirement ages. It was also argued by Solent that as article 6(1) of the Directive permits Member States to set a statutory retirement age Mrs Johns had no reasonable prospect of success in bringing her claim.

It was accepted by the Employment Tribunal that the European Court of Justice does not have to follow the Advocate General’s opinion. Nonetheless, it was noted that the Advocate General’s opinion was lengthy and well argued and that the issues in both that case and this current case were sufficiently close for the outcome to be the same. The Employment Tribunal decided that the prejudice to Solent, if the stay was granted (in theory until 2009), outweighed the prejudice to Mrs Johns in having her claim struck out, especially in view of the fact that she only had a remote chance of success.