· 1 min read · Features

Up front: Strictly legal - Decision on compulsory retirement is puton hold

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Discrimination claims related to retirement age await the result of a landmark case, says Elizabeth Adams.

Heyday, which is part of Age Concern, has launched a challenge to theEuropean Court of Justice (ECJ) on the compulsory retirement provisionsunder the UK Employment Equality (Age) Regulations 2006. Chances ofsuccess have been dealt a blow by the ECJ's decision in Palacios de laVille vs Cortefiel Servicios SA.

In this case the claimant was in dispute with his employer over theautomatic termination of his employment on reaching the compulsoryretirement age of 65. This was provided for in a collective agreementconsistent with national law authorising such a measure. By the date oftermination the claimant was entitled to draw a full retirement pensionunder the Spanish Social Security scheme. However, he felt thattermination of employment because of his age amounted to dismissal andit was discriminatory on the grounds of age.

The ECJ recognised that automatic termination imposed less favourabletreatment on workers who reached 65 compared with others. The differencein treatment was directly based on age. However, it found the provisionwas objectively justified because the Spanish legislature had introducedthe compulsory retirement mechanism to create opportunities in thelabour market. The measure was not unduly prejudicial to workers subjectto compulsory retirement because they get a pension at the end of theirworking life.

How will this case affect Heyday's challenge? The Government will needto establish what the aims of the Age Regulations of 2006 were and tolook at the consultation documents and drafts. Significant amendmentswere made in particular to the retirement procedures. The Governmenttook account of feedback from the CBI, TUC and other interested partiesso it may be more difficult to pinpoint its aim in introducing thisprovision.

Moreover the recent Appeal Tribunal case of Johns vs Solent resulted inthe Employment Tribunals' president directing that all agediscrimination claims brought by people aged 65 or over, who have beenforced to retire, are stayed pending the outcome of the Heyday case,which is unlikely before 2009. So far tribunals had been dismissing suchcases. It means claims lodged against employers will have to wait untilthe Heyday decision is made. This applies whether it is a public or aprivate-sector employer.