In the Heyday Challenge the High Court has held that the UK’s default retirement age (DRA) of 65 is lawful. A challenge to the law which allows employees to objectively justify direct age discrimination was also rejected.
The European Court of Justice had previously held that the DRA would be age discriminatory unless ‘justified by legitimate social policy objectives, such as those related to employment policy, the labour market or vocational training' achieved by appropriate and necessary means’.
So, the case then returned to the UK High Court for a decision on whether justification could be shown. In the event the High Court was indeed satisfied that the Government had proved to the requisite high standard that a DRA was a proportionate means of achieving legitimate social policy aims such as securing the integrity of the labour market and its short-term competiveness.
The Court then considered whether setting the DRA at 65 was proportionate to the social policy objectives. There were powerful reasons why a DRA higher than 65 could have been adopted, such as creating a cultural change in relation to age discrimination and retirement, and ensuring that the DRA would keep pace with future rises in the state pension age.
The Court indicated that if a DRA of 65 had been introduced in 2009 it would not have found it to be proportionate. However, the challenge to the law had to be judged as at the date it was begun, in 2006. The Court had regard to the fact that, in the consultations on the Regulations, the preponderance of consultees supported 65 as the DRA, that no one was making a case for age 68 or so, and that age 70 commanded little popular support.
On balance, the court concluded that setting the DRA at 65 was within the competence of the Government in implementing the Directive. Mr. Justice Blake went on to comment that he might have reached a different conclusion if the Government had not brought forward its review of the Regulations to 2010. He also noted that he ‘cannot presently see how 65 could remain as a DRA'.
As the Government had already made it clear that it will review the DRA, employers should be reckoning that within the next 18 months or so the DRA will disappear or be moved to a significantly greater age (70, perhaps). Employees approaching age 65 and who do not wish to retire should hang on in there and do all they can to defer the retirement party in the hope that a change in the law will help them or that an employer may be enlightened enough to retain them.
The judge’s remarks may ensure that even if there is a change in government next year the new party in power will be effectively required to carry on with the review.
