NEWS IN BRIEF

The decision by the European Court of Justice (ECJ) last week in what has become known as the “Heyday challenge” was very disappointing for employees.

It said that the provisions in the Employment Equality (Age Discrimination) Regulations 2006 requiring employees over a certain age to retire fell within the scope of the European Equal Treatment Framework Directive.

It also ruled that the UK regulations did not have to give a precise list of the circumstances in which discrimination is justified and that the UK’s compulsory retirement provisions would have to be justified to a “high standard of proof”.

So the onus is now on the government to prove in the High Court that compulsory retirement is “objectively and reasonably justified by a legitimate aim” and that the means chosen are “appropriate and necessary”. A legitimate aim has to be grounded in social policy and not “purely individual reasons particular to the employer’s situation”.

Heyday (an offshoot of Age Concern) had argued that, by forcing workers to retire at 65, the Government had not implemented the provisions in the directive correctly. It also argued that the justification defence for direct and indirect age discrimination did not properly implement the directive either.

Our reading of the judgment is that the ECJ was reluctant to criticise the form of law-making in the UK, but that it was also 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.

The case will be covered in more detail in a future LELR.