Heyday age discrimination ruling: what the employment lawyers and experts say

Opinion among employment lawyers and other experts differs as to how far-reaching the Age Concern-Heyday decision is. This is what they told Personnel Today:

Paul Epstein QC, specialist discrimination barrister, Cloisters Chambers

“The view that is being put forward here is that age discrimination is less serious than race or sex discrimination and the government has largely got it right in terms of European law. Furthermore, it leaves the possibility for ‘justifying’ age discrimination in any case wide open. However, it is far from certain at this point whether this opinion will be followed by the European Court of Justice. There is clearly a jurisprudential fight within the Court of Justice on the nature of age discrimination.”

David Walker, employment law partner, Dundas & Wilson

“Many employers would be relieved the advocate-general had paved the way to maintaining the UK default retirement age. Were this case to be successful, I think we’d see a lot of employers feeling very aggrieved that retiring people aged 65 was no longer an option for fear of having to deal with unfair dismissal claims. I think there will be a great sense of relief among businesses that this door has not been closed to them.”

Marian Bloodworth, senior employment lawyer, Lovells

“The advocate-general’s opinion may not come as much of a surprise to lawyers, but it does nothing to help employers decide how to treat employees who are imminently approaching the existing UK default retirement age of 65. We will not know the actual outcome until the European Court of Justice itself has ruled – likely to be in the New Year – and it seems likely that the case will be referred back to the UK courts on the justification point.”

Juliet Carp, solicitor, Speechly Bircham

“The advocate-general has not made a clear decision as to whether Heyday will win or lose. If the European Court of Justice follows the advocate-general’s opinion – as seems likely – the case will be referred back to a UK court to apply the principles to the facts. This may be good news for Heyday, and older employees, as UK courts may apply a more rigorous approach to analysis of the facts. And, frankly, the arguments put forward by the UK government at the time to justify retention of the compulsory retirement age do not stack up.”

Alex Lock, employment law expert, Beachcroft

“Although this is far from the end of the Heyday case, this is an important development that all employers should pay close attention to. The case will still go to the European Court of Justice (ECJ) for judgment, and then to the High Court, but 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 will withstand scrutiny and their financial and succession planning can continue with certainty.”

Sue Ashtiany, partner, Nabarro

“The first stage decision of the European Court of Justice has come down firmly in favour of the status quo. Member states can have a national retirement age if this assists with employment policy. Individual employers can have age discriminatory schemes (for example, age-related benefits) provided they are reasonably justifiable by reference to their business needs. This is a result that is at the further end of the possible outcomes and most in favour of the UK government’s interpretation of the European Directive. The 260 or so people bringing retirement cases that have been ‘stayed’ will be disheartened by this result. Employers and the government will probably breathe a sigh of relief.”

Catharine Pusey, director, The Employers Forum on Age

“Today’s news leaves us no further forward on the issue of default retirement in the UK. It would be wrong for either side to claim a victory. 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 European Court of Justice, this decision indicates that the status quo in the UK may be maintained.

Matthew Lawrence, risk consultant, Aon Consulting

“This is good news for business. Today’s decision removes one potential minefield from businesses’ stacked in-tray of employment issues. If the European Court of Justice endorses the opinion offered by the advocate-general, this would no doubt be welcomed by employers who have, in recent times, had to contend with a number of complex legislative issues relating to pension and other employee benefits.”

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