Compulsory retirement lawful, for now

At the end of last month, judgment was handed down in the Heyday litigation – a long running campaign by Age Concern to have the laws allowing compulsory retirement at 65 struck from the statute book as incompatible with European law.

Of course, the slow machinations of the European justice system means I now post on this subject on an annual basis only. In 2006 the proceedings were started in the English High Court, in 2007 the reference was made to the ECJ, and all related tribunal claims stayed, in 2008 the Advocate General announced his opinion, in March 2009 the ECJ promulgated its decision, referring the question of whether or not our regulations were lawful back to the English court.

See my post on the AG’s opinion for the legal background, but the most important question the High Court had to decide was whether the UK’s default retirement age of 65 (after which you can dismiss a person without them having any recourse to age discrimination remedies) was lawful. The message back from the ECJ had been that it could be, if sufficiently justified by “legitimate employment policy, labour market and vocational training objectives”.

The very brief answer is that yes, it was, but would not be so now. This means that the default retirement age (DRA) stands in respect of any claims brought over it to date, including many that still stayed in the employment tribunals.

Mr Justice Blake indicated however  that if the government hadn’t promised to review the level of the the DRA in early 2010 he would have ruled the provision unlawful, and that when that review is conducted a level of 65 would be unlikely to be justified. His judgment can be found here: Age UK, R (on the application of) v Attorney General [2009] EWHC 2336

The government’s announcement came only three days before the present case was heard.

Of course it’s impossible to know what transitional arrangements will apply to amendment of the DRA, but no doubt many employers will be receiving advice at present that they ought to hurry up with dismissing any unwanted 65+ employees that they might have. They key point will be whether, for the new DRA to apply, the date of the dismissal must fall before or after the legislative change, or the notifying of the Intended Retirement Date under the procedure.  If the former, then employers may have already missed the boat for giving the required six months notice, if the latter then we can expect a culling of 65 – 70 year old employees in the months ahead.

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