Retirement ages - has the Heyday challenge failed?

02/11/2009

By Nick Hobden, Partner and Head of Employment.

Thomson Snell & Passmore have a particular and vested interest in the Heyday claim that is currently being considered by the European Court of Justice ("ECJ").

This is because one of our partners, Susanna Gilmartin, is defending an associated claim, the outcome of which will be heavily influenced by the decision in Heyday. Susanna's case was recently considered by the Court of Appeal and was widely reported in the employment law and HR press.

Heyday, it has been quipped, is the "militant arm" of Age Concern. It campaigns for the rights of older workers and the retired. The intention of the legal proceedings that Heyday launched was to seek a ruling that the inclusion in the Employment Equality (Age) Regulations 2006 of a statutory normal retirement of 65 was unlawful.

Where such cases are referred to the ECJ, firstly the Advocate General publishes an opinion on the claim being pursued. Then the European court itself will convene in order to make a formal decision, some considerable time later. Whilst the European court commonly concurs with the Advocate General (having remembered what the AG said some time before), this is not always the case.

The Advocate General recently published his opinion on the Heyday case and rejected its arguments. He concluded that a statutory normal retirement age of 65 can, in principle, be justified if it is "objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market and it is not apparent that the means put in place to achieve that aim of public interest are inappropriate and unnecessary for the purpose."

The Advocate General also pointed out that member states have a wide discretion in the means used to achieve a legitimate aim relating to employment and social policies.

This is a blow to the Heyday cause. However, we will have to wait until early 2009 to see whether (as seems likely), the ECJ agrees with the Advocate General's Opinion. If it does, then it further seems likely that the High Court (when it finally gets the case back as late as 2010) will find that the compulsory retirement provision is objectively justified and, therefore, lawful.