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Good news for employers on Heyday Challenge

The European Court of Justice in Luxembourg has given its eagerly awaited judgment in an age discrimination case known as the Heyday Challenge.

The organisation Heyday, which is a branch of Age Concern and an advocate for people in or near retirement, argued that 'forced retirement' at age 65, permitted under the Employment Equality (Age Discrimination) Regulations 2006, contradicts the EU Equal Treatment Framework Directive (“the Directive”).

The Court however, found that the provisions of the 2006 Regulations, which allow compulsory retirement of workers at age 65, fall within the scope of the Directive, and as a result the High Court must now decide whether these provisions are justified on reasonable social-policy grounds. Social-policy goals can be justified under national laws that set a mandatory-retirement age. Today’s ruling has provided that a “difference of treatment on grounds of age is justified if it is a proportionate means to achieve a legitimate social policy objective”.

Liz Lynne, the Liberal Democrat MEP who helped draft the EU’s employment law said, [the ruling] “is a bitter blow for older people”. Britain must “put an end to the unfair and discriminatory practice of mandatory-retirement ages.”

Heyday also argued that the broad defence of justifiable age discrimination did not include a specific list of the aims justifying derogation from the principle of non-discrimination. However the ECJ decided that a precise list of aim is not required to justify derogation.

The decision as to whether compulsory retirement is, in fact, justified and the aims legitimate, will be left for the High Court. The Government will have the burden of proving to a high standard of proof the legitimacy of the aim relied on as justification.

Michael Pitt, employment partner at Pearson Hinchliffe Commercial Law said that employees can always request the right to stay on but there must be flexibility in the system in which, “employers are allowed to retain the right to decline a request to keep working beyond 65 years, but where long-learned skills and experience are at stake, an employer can manage succession planning to his or her business advantage. Older employees should not be permitted to block opportunities to develop younger staff. This is especially pertinent in periods of rising unemployment.”

For more information or advice, please contact an employment solicitor.

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