Charities and Not-for-Profit Plus Blog
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High Court upholds retirement age of 65
In the long awaited Heyday litigation the High Court, handed down its decision on 25 September that the Government’s designated retirement age (DRA) of 65 and the ability to justify direct age discrimination are both lawful.
The Heyday challenge was initiated in 2006, when Age Concern (now Age UK) challenged certain aspects of the Employment Equality (Age) Regulations 2006 which came into force in April of that year. Regulation 30 allows employers to dismiss an employee on the grounds of retirement at the age of 65 and this does not constitute unlawful discrimination.
Regulation 3 permits an employer to justify direct and indirect age discrimination. Age UK argued that legitimate reasons for retiring an employee could be established on a case by case basis and therefore no DRA was necessary.
The case was referred to the European Court of Justice and it was decided (March 09) that having a DRA would be discriminatory unless is was justified by legitimate social policy objectives. It was then referred back to the UK to see if there was this justification.
The Government were successful in terms of the DRA. Mr Justice Blake decided that the DRA was justified and he was satisfied that the Government had proven that “the concept of a designated retirement age was based upon a social policy aim that may be generally described as maintaining confidence in the labour market.” Objectives such as workforce planning, protection of the dignity of workers at the end of their working lives and encouraging culture change were included in this. It was considered that a DRA of 65 was proportionate to the social policy objective in question, however he also stated that there were significant reasons why a higher age should have been selected, including creation of a cultural change in relation to age discrimination and ensuring that the DRA was in line with the state pension age.
There is an imminent review due of the DRA and so it is anticipated that there will be continued discussions on the topic of whether the age should be increased or not. It is typically felt that the DRA ‘’does create a greater discriminatory effect than is necessary on a class of people who are both able to and wait to continue in their employment’’. It is anticipated that the DRA of 65 provided for in the Regulations will increase following the Government’s review (2010).
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