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Age Concern loses retirement age challenge

29 September 2009

The UK’s default retirement age of 65 is not unlawful, the High Court has ruled, bringing to an end three years of Heyday litigation.

However, Mr Justice Blake said the case for raising the age, following a review to be held next year, “would seem to be compelling”.

Age Concern brought judicial review proceedings in the High Court in December 2006, arguing that the UK’s age regulations breached the ban on age discrimination in the equal treatment directive. The Heyday case was referred to the European Court of Justice in July 2007.

The ECJ ruled in March this year that derogations from the ban on age discrimination could be lawful if they were “justified by legitimate social policy objectives, such as those related to employment policy, the labour market or vocational training”.

Giving judgment in R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336(Admin), Blake J said the position might have been different if a review had not been announced by the government.

He said he could not “presently see” how 65 could remain as the default retirement age (DRA) after the review.

The judge said that if the DRA had been adopted for the first time this year, or there had been no indication of an imminent review, the choice of age 65 would not have been proportionate.

Blake J went on: “It creates greater discriminatory effect that is necessary on a class of people who are both able to and want to continue in their employment.

“A higher age would not have any general detrimental labour market consequences or block access to high level jobs by future generations.

“If the selection of age 65 is not necessary it cannot therefore be justified.”

However, Mr Justice Blake said the age of 65 had support from past practice in the UK and elsewhere in the EU and an appropriate margin of discretion must be given to the government.

He said that the regulation adopted in 2006, setting the DRA, was not beyond the competence of the government or outside its “discretionary area of judgment”.

He went on: “It was not a bold decision at the time, but that is not the test. It was not a decision for the long term but that fact alone does not make it unlawful.”

Paul Epstein QC from Cloisters, the chambers acting for Age Concern, said: “In the short term this is a disappointing ruling for the millions of workers who want to continue working past 65.

“There are an estimated 900,000 people over 65 who are in work. As a result of this decision their rights in the work place remain extremely limited.”

Rachel Dineley, head of diversity and discrimination at Beachcroft, said that being able to objectively justify direct discrimination was one of the “unusual elements” of age discrimination.

“This ruling will be welcomed by all those employers who choose to retire employees, especially given the current economic climate,” she commented.

Dineley said she believed the hundreds of cases put on hold pending the Heyday ruling would be dismissed.

In a separate development, Tower Hamlets Council is to appeal against an EAT ruling that a 49-year-old housing officer, made redundant before he could qualify for early retirement, was a victim of age discrimination.

John Wooster claimed over £1m in compensation for loss of earnings, reduction in pension and injury to feelings. The figure includes an uplift of 50 per cent to take into account the council’s failure to follow procedures. It is understood to be the largest age discrimination claim so far.

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Termination Discrimination Vulnerable Clients Local government