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, frank