The Advocate General at the European Court of Justice has paved the way for UK employers to continue to enforce compulsory retirement for employees aged 65 years and over.
Issuing an opinion on the age discrimination case between Heyday, a branch of Age Concern, and the Secretary of State for Business Enterprise and Regulatory Reform (BERR) the Advocate General has rejected the claim that the UK's compulsory retirement of workers aged 65 years and over is in breach of the European Equal Treatment Directive, saying that it can, in principle, be justified.
Heyday launched the legal challenge to prevent employers being able to force staff to retire at the age of 65 years, claiming this practice was age discriminatory. The outcome of the case is still subject to forthcoming decisions to be made by the the European Court of Justice and the High Court.
Alex Lock, employment law expert at law firm Beachcroft, said: "Although this is far from the end of the Heyday case, this is an important development that all employers should pay close attention to. Although the case will still go to the ECJ for judgement, and then to the High Court, it is likely that the ECJ will follow the Advocate General's opinion.
"Employers should feel more certain than ever that retiring someone at age 65 years will withstand scrutiny and their financial and succession planning can continue with certainty. However, it is important to note that although the principles of the Age Discrimination Regulations do not offend the Directive, the detail of them will have to be considered by the High Court. The Advocate General’s decision tells us that the UK is competent to set a retirement age – however, as to whether 65 years is correct or not is not discussed in detail. It is this issue, whether [age] 65 as a compulsory retirement age can be justified, that will have to be faced by the High Court if the European Court follows the Advocate General’s opinion.
Gordon Lishman, director general of Age Concern, said: “This is a set back, but it is not a disaster. Not having the Advocate General’s support for our case is disappointing for us and for the millions of older workers in the UK. The Advocate General's opinion confirms that the EU Directive requires age discrimination to be justified. It is now up to the UK government to prove to the High Court that their social and employment policies are important enough to justify kicking people out of work at 65 [years]. Until then, older workers face more uncertainty about their right to work.
Catharine Pusey, director of The Employers Forum on Age, added: “The situation still hinges upon whether the UK Government can objectively justify the inclusion of a default retirement age in the age discrimination legislation. While not binding on the ECJ, this decision indicates that the status quo in the UK may be maintained. This would mean that we rely on the enlightened employers, many of them our members, to promote policies which make no assumptions about people’s employability based on age.