0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

setback in age reform

25 March 2009
Actually, any decision other than that reached by the European Court of Justice (ECJ) would have been a major step into the unknown, leading to a possible significant increase in the working population at a time that would least suit the government and the tax payer.

Background

The UKs Employment Equality (Age) Regulations (EE(A)R) permit employers to impose a compulsory retirement age for employees of 65. Heyday, part of Age Concern, launched a claim that this was contrary to the European Directive on discrimination, on grounds of age. They said their claim reflected the public opinion in a survey they carried out.

The case was referred to the European Court by the High Court in 2006, leaving around 260 tribunal cases on hold, awaiting the outcome.

The decision of the ECJ

The ECJ has ruled that member states can impose a compulsory retirement age if they have a legitimate aim, justified by social policy objectives, and the compulsory retirement age is an appropriate and necessary way of achieving this aim. The case will now be referred back the High Court in London for a decision on this point.

So we have not moved forward from when we reported the Advocate-Generals opinion. A compulsory retirement age is permissible if a member state can justify it.

Any guidance so far?

The UKs compulsory retirement age only applies to employees and certain other limited categories of worker. It does not apply to judges and partners. In these cases a compulsory retirement age must always be justified. This has led to a small number of cases regarding justification being reported already.

Hampton v Ministry of Justice concerned a court recorder, and Seldon v Clarkson Wright and Jakes concerned a partner in a law firm; both were retired at age 65. The tribunals in both cases, decided that the aims which the respondents claimed justified the compulsory retirement, were legitimate. In Hampton, this was to maintain a reasonable flow of new appointments; and in Seldon it was to ensure collegiality between partners, i.e. they avoided the ignominy of having to tell a partner whose performance was declining that they ought to leave. Neither were able to show that the provision was proportionate or reasonably necessary to achieve those aims.

It seems the problem in both cases was lack of evidence to back up the impact of allowing employees to stay on beyond retiring age. However, the only sure way of obtaining the evidence would be to allow people to stay on and see what happens.

Challenges to retirement ages have now become de-rigueur for those about to be retired. Two High Court judges are challenging their enforced retirement at age 70.

The High Court decision

The High Court must now decide whether a national default retirement age of 65 is appropriate and necessary to achieve some legitimate aim. The tribunal cases so far may help to identify factors which might justify the default retirement age but the government will somehow have to find evidence that those considerations apply nationally, and not just in those workplaces.

training and events

11Dec

Lunchtime learning session on Ocean Outdoor -v- London Borough of Hammersmith and Fulham Nottingham office

The Court of Appeal has recently handed down judgment in Ocean Outdoor v London Borough of Hammersmith & Fulham. Join us on our lunchtime learning session about this case.

View event

16Jan

Maximising Public Sector Opportunities Workshop London office

Suppliers often comment that the public procurement regime does not provide a great deal of detail around the role of challenge during a tender process. When taking part in a public sector tender process do you really want to challenge what the contracting authority is doing as it may disadvantage your submission?

View event

focus on...

Guides

Education versus the IR35: top tips

You may have seen discussion lately about IR35 and, in particular, how it is changing for companies in the private sector.

View

Legal updates

Horizon scanning

In the first of what we hope will become a regular feature in Be Connected, Nick MacKenzie reviews what’s on the horizon for the education sector and briefly shares with you a number of themes.

View

Guides

Review of SEND Framework

The House of Commons’ Education Committee has reported on the implementation of the new Special Educational Needs and Disability (SEND) framework under the Children and Families Act 2014.

View

Legal updates

Is your complaints process fit for purpose?

As part of the advisory service we offer schools, recent enquiries have arisen from academies being contacted by the Department for Education (DfE) about their complaints policies.

View

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.

mailing list sign up



Select which mailings you would like to receive from us.

Sign up