It might seem strange to write about retirement when many people in London are haunted by the spectre of redundancy, but a legal development in Brussels this week potentially affects when we can all retire. I wrote a while ago about the Heyday challenge to the Age discrimination legislation that came into force almost exactly two years ago. Those Regulations provide that it is lawful to require a person to retire at 65. A younger age is unlawful unless it can be justified. Heyday, part of Age Concern, argued that having this default age was discriminatory in itself. This week the Advocate-General at the European Court of Justice has published his opinion stating that the default age is not contrary to European law provided it is a proportionate means of achieving a legitimate aim and that is an issue for national courts to decide. The ECJ will decide the issue in December, but there is a good chance it will follow the Advocate-General’s opinion.
Why is this important? 65 was chosen as a default retirement age to assuage those people that want to retire before they join the choir invisible and also employers (who should, of course, know better) want to know they can get shot of that awkward old bugger in accounts. However, many people want or need to carry on working and it is easy to see why Heyday brought its challenge. If the ECJ upholds the Advocate-General’s opinion it will then be left to the government to justify the default retirement age to the UK courts and that will be a very interesting case as I struggle to see how the government can justify making people retire at 65. It goes to the very heart of the age discrimination regulations.
The situation, for now, is as unclear as ever. Employers will breathe a sigh of relief, for the time being, and those employees with Employment Tribunal claism stayed pending the outcome of the Heyday challenge will just have to carry on waiting.