The Advocate General in the European Court of Justice has delivered his opinion on the legal challenge to the UK Age Regulations which allow employers to forcibly retire (sack) employees aged 65 and over. Although the media seem to think that in some way Heyday has lost, the truth is far more complicated and the UK provisions on retirement remain far from safe.
First of all the AG opinion is not a judgment and it doesn’t bind the European Court who have yet to rule on the issue. Most importantly however, the ECJ has already answered the most important questions raised by this case in Palacios de la Villa. In that case the ECJ ruled that dismissal for retirement was covered by the Equal Treatment Framework Directive and would be unlawful unless justified as being an appropriate and necessary means of achieving a legitmate objective - a test which the ECJ then went on to find had been met by the Spanish law.
The questions referred to the ECJ in Heyday do not ask whether the UK system is justified, the questions instead focus on whether the directive covers retirement (we now know it does) and whether the test of justification is different in cases of direct and indirect discrimination. The main conclusion of the AG in this case is that the justification test is the same for both direct and indirect discrimination.
It is true that reading between the lines of the opinion the AG seems to think that the UK system is likely to be justifiable but that is not a matter for him but for the national court. I think that when it comes down to it the UK will struggle to establish that allowing any employer to sack any 65 year old provided a limited procedure is followed without having to show any degree of reasonableness is a proportionate means of achieving a legitimate social policy objective.
Obviously the issue of retirement is one that we will consider in detail at our employment law updates on 25 and 27 November. Click here for details.
