Age Equality Regulations – High Court supports default retirement age, for nowTuesday, September 29th, 2009
On 25 September, the High Court gave its judgement in the long-running Age Concern case, which challenges the setting of age 65 as the designated retirement age (DRA) in the Employment Equality (Age) Regulations 2006. In July 2007, the charity Age Concern challenged the legality of the legislation, claiming that it allows employers to discriminate against employees reaching age 65.
The High Court referred the issue to the European Court of Justice (ECJ) and, in March 2009, the ECJ ruled that it is for national courts to determine whether or not the Age Equality Regulations are consistent with legitimate social policy objectives, as permitted by the European Equal Treatment Directive. On that basis, the ECJ indicated that the Regulations are not, in themselves, inconsistent with the Directive and the matter was sent back to the High Court to determine whether the setting of age 65 as the designated retirement age has been objectively justified as proportionate, necessary and for a legitimate purpose.
Although the High Court’s decision not to declare the Regulations discriminatory was hailed in some quarters as a “victory for common sense” (CBI press release), it is certainly a hollow victory. In the view of Mr. Justice Blake, there is little to justify age 65 as a designated retirement age and, if it were not for the fact the Government has announced that it is bringing forward its review of the Regulations to 2010, he would have concluded that “selection of age 65 would not have been proportionate” and that “it creates greater discriminatory effect than is necessary on a class of people who are both able to and want to continue in their employment … If the selection of age 65 is not necessary it cannot therefore be justified. I would, accordingly, have granted relief requiring it to be reconsidered as a disproportionate measure and not capable of objective and reasonable justification in the light of all the information available to government.”
With regard to the Government’s planned review, Mr. Justice Blake added that “the position might have been different if the government had not announced its timely review. I cannot presently see how 65 could remain as a DRA after the review.” A very public challenge to the Government!
Age UK v HM Attorney General
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