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No heyday for age discrimination campaigners

25 September 2008

The Advocate-General has rejected a claim launched by the charity Heyday that the UK Employment Equality (Age) Regulations (EE(A)R), which permit a compulsory retirement age of 65, breaches EU equality requirements. Although the Advocate-Generals view is not binding, his opinion is expected to heavily influence the European Court of Justice (ECJ), which is expected to give its final ruling in this case in December.

History of the case

The UK EE(A)R were introduced in October 2006. Although they ban discrimination on grounds of age, they do allow compulsory retirement at age 65 or over - arguably one of the most discriminatory actions an employer can take. So long as the required procedure is followed, compulsory retirement at 65 or over is not unlawful and cannot be unfair.

Heyday, part of Age Concern, launched their campaign after a survey showed that 80 of the 60,000 respondents believed the Regulations to be unfair. They argue that, with more than a million people already working past state pension age, retirement on the basis of their date of birth is unjust. They point out that with an increasing number of people working into retirement in order to make ends meet, those over 65 are the fastest growing group in the workforce.

Organisations including the CBI argue that keeping the normal retirement age of 65 is an essential management tool, pointing out that employers have to consider any requests by employees to work beyond that age.

The case was referred to the European Court by the High Court in 2006. Around 260 cases are currently on hold in tribunals, awaiting the outcome of this test case. There is the potential for thousands more claims depending on the outcome of the ECJs decision.

The Advocate-Generals opinion

In his opinion the Advocate-General, Jan Marzak, agreed with Heyday that "In line with previous case law, rules such as the UK rules on mandatory retirement at issue do fall within the scope of the directive."

But he went on to say that European member states may apply national laws to fix retirement ages as long as they can be justified "in the context of national law by a legitimate aim relating to employment policy and the labour market."

So, his view is that, provided member states can justify it, a compulsory retirement age is permissible.

What happens next?

Whilst the Advocate-Generals view is not binding it is likely to influence the ECJ judges who have previously followed their opinions in 80 of cases. The ECJ ruling on this case is expected in December. We will keep you informed.

Why is this case important for employers?

Public sector employees may be able to enforce the European Directive on age discrimination against their employer (the State). If the ECJ goes against the Advocate-Generals opinion and decides that the Regulations fail to implement the Directive, employees in the public sector forced to retire and/or those who are refused employment at age 65 or above could submit claims for unfair dismissal and/or age discrimination.

Private sector employees do not have any direct rights under the Directive, but the Government would be likely to legislate (if necessary) to bring the Regulations into line with the Directive. All employers would then need to manage employee performance and succession planning issues on a much more active basis.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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