Setback for Heyday campaign

Compulsory retirement at 65 can be justified, the European Court of Justice (ECJ) has ruled.

The ruling, which stems from a judicial review against the national default retirement age, will derail a huge number of potential claims against employers, according to Freshfields’ employment partner Kathleen Healy. “Employers now retain their legal right to enforce retirement at 65, providing they follow the correct procedure,” she says.

In Incorporated Trustees of the National Council for Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform, better known as the Heyday case, the charity argued the UK government had incorrectly implemented the EC Equal Treatment Framework Directive in the Employment Equality (Age) Regulations 2006 by allowing forced retirement and by giving employers too much scope for age-based rules in the workplace.

The High Court referred a series of questions to the European court, which ruled last week that a mandatory retirement age is in principle capable of justification. Consequently, subject to a further decision by the High Court, UK employers can continue to retire employees at 65.

According to Thompsons Solicitors, the government will now have to show that compulsory retirement is “objectively and reasonably justified by a legitimate aim” and the means chosen are “appropriate and necessary”. A legitimate aim must be grounded in social policy and not “purely individual reasons particular to the employer’s situation”.

Richard Arthur of Thompsons Solicitors said: “While the ECJ was reluctant to criticise the form of law-making in the UK, it was sceptical of whether the UK government could actually show that there was a legitimate aim in allowing employers to retire employees compulsorily at age 65, and that the means of achieving that aim were proportionate and necessary.”

Schona Jolly, discrimination specialist at Cloisters chambers, which acted for Age Concern, said: “This is clearly a setback for age equality campaigners who were hoping for favourable rulings that would show that the European court considered age discrimination to be as serious as race or sex discrimination.”