The Advocate General, in his opinion on the age discrimination case between Heyday and the Secretary of State for Business Enterprises and Regulatory Reform, has paved the way for retaining the UK default retirement age of 65.

Heyday (part of Age Concern) has brought a case challenging the legitimacy of certain aspects of the Age Discrimination Regulations 2008, alleging that the UK government has failed to properly implement the Equal Treatment Directive.

The Advocate General has now issued his opinion, in which he states that it is not unlawful to include a rule in national legislation permitting employers to dismiss an employee at 65 or over, provided it can be objectively and reasonably justified by reference to legitimate aims. In coming to his opinion, the Advocate General followed the ECJ decision in the recent Palacios case and so this aspect of his decision is not surprising. He also dismissed the second part of Heyday's challenge by confirming Equal Treatment Directive permits justification of both direct and indirect discrimination on grounds of age.

Impact on employers

The Advocate General's opinion is not binding upon the ECJ, but provides assistance to it in reaching its decision, which should be issued in a few months' time. If the ECJ follows the Advocate General's opinion, the case will then return to the High Court for determination. Whilst the decision is being seen as a victory for the UK government, it will still have to show in the High Court proceedings that the compulsory retirement provisions of the Age Discrimination Regulations can be objectively justified by reference to legitimate aims relating to employment policy and the labour market.

In the meantime the 260 or so claims for age discrimination relating to compulsory retirement currently pending before UK employment tribunals will continue to be put on hold.

Regardless of the outcome of these proceedings, the government has committed to reviewing the default retirement age before March 2011, when it is possible that it could be abolished altogether.

03 October 2008

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