The "Heyday" challenge: an update

The Employment Equality (Age) Regulations 2006 (“the Age Regulations”) seek to prohibit both direct and indirect discrimination on the grounds of age. They were introduced in 2006 to implement the provisions of the EC Equal Treatment Framework Directive (“the Directive”), which provides a legal framework for the equal treatment of all persons in employment and occupation irrespective of age, disability, sexual orientation, religion or belief.

Although European member states have a broad discretion as to how to implement European Directives into national law, they must take all necessary measures to ensure that the objectives of the Directive are achieved.

The Heyday challenge

The Age Regulations contain a number of specific exemptions, one of which is a right for employers to dismiss employees at or above age 65 where the reason for the dismissal is retirement. Readers of this column will be aware that Heyday, an offshoot of the charity Age Concern, is currently challenging this “default retirement age” exemption, which it argues is contrary to the Directive.

This challenge to the right of UK employers to retire employees is creating particular uncertainty for employers, including education institutions.

The Advocate General’s opinion

The High Court has referred a number of questions arising out of the Heyday challenge, including the default retirement age issue, to the European Court of Justice (“ECJ”) and the Advocate General of the ECJ has recently given his opinion. The Advocate General’s role is to assist the ECJ in making its decision. The ECJ may follow his opinion but it is not obliged to do so.

In a welcome development for employers, the Advocate General has stated that, in his opinion, a default retirement age is, in principle, capable of “objective and reasonable” justification. It will be for the UK courts to determine if it is so justified by reference to whether there exists “a legitimate aim relating to employment policy and the labour market”. The Advocate General added that the courts must be satisfied that the current provisions are not “inappropriate and unnecessary” for the purpose of achieving that aim.

This suggests that European member states would have a relatively wide discretion when choosing not only the social and employment policies they wish to pursue but also the means to be used to achieve those legitimate aims. If the ECJ takes the same line as the Advocate General, Heyday may not find it easy to overthrow the default retirement age when the matter is referred back to the High Court. Unfortunately, it is likely to be some time before this issue is definitively resolved.

Diane Gilhooley is an HR expert in the education team at Eversheds.