Judge insists on retirement age reform

Mr Justice Blake fired a warning shot when handing down his judgment in the Heyday case that legislation governing the default retirement age must be reformed.

Over the past three years the case, which was brought by Age Concern organisation Heyday, has made many twists and turns.

In 2006 Heyday brought a judicial review action against the Government, arguing that the UK Employment Equality (Age) Regulations were discriminatory and incompatible with the European Commission Equal Treatment Framework.

The case made its way to the European Court of Justice before being referred back to the High Court for further discussion.

It was one of the final cases to be heard before the summer break and one of the first to receive a judgment in the new legal year.

It was ruled that employers can objectively justify the retirement of employees at the age of 65 so long as those justifications are in line with wider social aims. The ruling is specific to the employer/employee relationship and does not affect the rules governing partnerships.

Blake J made it clear that, had the Government not announced that it would bring forward a review of the default retirement age to 2010, he would have found in favour of the claimant.

That all-important Government announcement was made just days before the case opened in the High Court. It was, as Cloisters’ Paul Epstein QC highlighted, a “technically astute” announcement, or as another claimant employment partner put it, “a check mate move” that effectively sealed the fate of the claimant.

But as Blake J himself said: “There’s an acute policy tension in this area.”

Beachcroft employment partner Rachel Dineley said Blake J has attempted to find a balance between the perceived merits of the claimant’s case and the havoc that would ensue had the claimant won, with the myriad of age discrimination cases waiting in the wings. Many of these cases, which were stayed in 2006 pending the outcome of Heyday, will be laid to rest by the ruling – unless the claimant appeals, which is highly unlikely given the wider Government review. Had the claimant won even some of its arguments, this could have resulted in claims within the public sector proceeding while those in the private sector would fail pending an amendment to the 2006 regulations.

Blackstone Chambers’ Dinah Rose QC, instructed by the Treasury Solicitor’s Department, acted for the Secretary of State for Business, Innovation and Skills. Cloisters’ Robin Allen QC was instructed to represent Age UK (formerly Age Concern and Heyday) by Irwin Mitchell.