ECJ Issues Ruling on Heyday Challenge to UK Age Regulations

On 5 March 2009, the European Court of Justice (ECJ) ruled in The Incorporated Trustees of the National Council for Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform, (Case C-388/07)—commonly known as the Heyday Challenge—that UK regulations may permit compulsory retirement at a certain age provided that the United Kingdom's legislative policy of retirement at age 65 or over is justified by a legitimate aim and that aim is achieved in an appropriate and necessary manner.

ECJ Ruling

As expected, the ECJ followed the Advocate General's opinion. The ECJ ruling notes that a provision stipulating a mandatory retirement age is not of itself prohibited by the Equal Treatment Framework Directive (2000/78/EC) (Framework Directive) provided it is objectively and reasonably justified by legitimate aims and the method of achieving those aims is appropriate and necessary. However, the ECJ expressly provides that there will be a "high standard of proof" on member states in establishing the legitimacy of an aim relied on as an justification. What is a legitimate aim is given a wide scope. The ECJ notes that the aims which may be considered "legitimate" by the Framework Directive, and appropriate for justifying from the principle prohibiting discrimination on grounds of age, are social policy objectives, such as those related to employment policy, the labour market or vocational training. These aims are distinguishable from individual reasons due to the employer's situation, such as cost reduction or improving competitiveness. The ECJ further notes that it is for the national court to determine whether the UK legislation reflects such a legitimate aim and whether the means chosen are in fact appropriate and necessary to achieve it.

High Court to Determine Whether Default Retirement Age Is Lawful

The ECJ ruling does not resolve the question of whether the default retirement age of 65 is lawful and the UK government now has to prove the legitimacy of the aims relied on as justification for the default retirement age. It is now up to the UK High Court to determine whether the rule that allows employers to force employees to retire in the United Kingdom is justified as a legitimate aim in terms of social and economic policy. No date has been set for the High Court hearing but it is expected later this year.