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Counting the days

29 September 2009

To some it had been clear from the start that the equal treatment directive allowed derogations from the ban on age discrimination, including the setting of a mandatory retirement age. Whether this was socially, culturally or economically right or wrong was a separate issue.

But others saw a chink in the discrimination armour. The case brought by Heyday, the membership arm of Age Concern which was wound up in March after losses of £22m, was possibly the most high-profile challenge to the age discrimination regulations in Britain. In judicial review proceedings started in 2006 the charity argued that compulsory retirement was not justified by any legitimate policy objectives; even assuming it was, setting the default age at 65 was not reasonable.

There was mileage in these arguments - until the ECJ ruled in Palacios de la Villa two years ago that mandatory retirement was lawful if it was intended to open up the job market for younger workers, which is what the UK government was arguing.

So it was perhaps not too unexpected that Mr Justice Blake would rule in favour of the government.

Frankly surprising though, were the comments the judge made at the end of the ruling. Had the case been brought in 2009, he said, he would have found that “the selection of age 65 would not have been proportionate”, particularly in the light of the current recession.

He also suggested that his decision took account of the government’s promise to review the DRA next year, one year before the original date set for the review.

Leaving aside this rather unusually prospective approach to statutory interpretation, there is a more puzzling contradiction: surely a lower default retirement age would be particularly justifiable in the current economic climate because it would allow more young people - those most at risk of unemployment - to enter the job market.

There may be grounds for moving the DRA upwards, but what would be a justified retirement age: one year, two years? Even Mr Justice Blake, ready as he was to slam the government over a DRA of 65, accepted government findings that no case had been made for age 68, and that there was little support for age 70. Which begs the question: was it all worth it?

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