Heyday: the end of the beginning

Heyday: the end of the beginningYesterday the advocate-general to the European Court of Justice rejected the first major challenge to the right of employers to make people retire at 65. The Heday case, brought by the charity Age Concern, has been running since 2006 to clarify the laws governing age discrimination around retirement.

Just occasionally the prospect of a significant judicial utterance breaks into the public consciousness. So it was yesterday morning when early editions of the national media were heralding what they, mistakenly, understood to be the handing down of the determination of the ECJ on the Heyday challenge to the UK’s approach to the implementation of the Equal Treatment Directive in the field of age discrimination.

Informed sources would, of course, have appreciated that it was not the judgment of the Court which was due to be handed down that day but the opinion of the advocate general on the reference. The decision of the ECJ is expected later in the year.

The focus of the Heyday challenge, from which the reference to the ECJ has been stated by the High Court, is the deemed justification under the UK Regulations, if a prescribed procedure is followed, for dismissals of employees at or over the age 65.

Those grappling with the issue of the justification for fixed retirement ages in partnerships and LLPs will mutter under their breath that this was not a benevolence the UK Government felt able to extend to them. There is a powerful argument that the manner in which the UK has implemented the Directive means that, in practical terms, employees over the age of 65 are effectively deprived of much of the benefit of the Directive. This is an issue which has significant practical repercussions for employers and employees alike, not least because of the growing number of claims stayed before Employment Tribunals in the UK.

It would be a mistake to believe, however, that the AG’s reasoning, if adopted in the ECJ’s decision, will give a clear steer as to the resolution of the question of the lawfulness of UK’s scheme.

For employment lawyers. ECJ decisions have always had two typical features; at least one party whose name is almost entirely unpronounceable and secondly a sentence in the Judgment which begins with the words “As we told you in the case of …”. The terseness of some of the ECJ’s judgments does however leave the decisions of the ECJ, at least in the field of employment, often begging more questions than they answer.
See, by way of example, 30 years of TUPE litigation. This may fairly be seen to reflect the strictures on its functioning. The requirement of unanimity in the decisions of the ECJ is intrinsically likely to prompt directness in answering the referenced questions and a terseness of reasoning. Anyone who has ever attended a partners’ or chambers’ meeting will appreciate that getting a group of lawyers to achieve unanimity on anything is a triumph in itself.

The AG’s opinion focuses on answering the narrow specific questions within the Heyday reference, an approach which the UK Government argued for. If the Judgment of the ECJ reflects that approach it is likely provide a narrow direct answer to the referenced questions and throw back the issue of justification to the High Court with precious little by way of guidance. Thus expectations of a little “spin” on the ball as it comes back may be mistaken.

The reality is that issues of justification in age discrimination cases will be troubling Courts and Tribunals for years to come. The eventual Judgment of the ECJ on the Heyday reference will not be the end, it will not even be the beginning of the end, but it will, perhaps, be the end of the beginning. I hope I will be forgiven for plagiarising the turn of phrase of a former Prime Minster so shamelessly out of context but it’s always worth recalling that he didn’t embark upon his greatest achievements until he was 69.