Heyday: the end of the beginning
Yesterday 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.
Readers' comments (9)
Gordon Lishman, Age Concern director general | 24-Sep-2008 5:15 pm
Heyday
This is a set back, but it is not a disaster. Not having the Advocate General’s support for our case is disappointing for us and for the millions of older workers in the UK.
The Advocate General's opinion confirms that the EU Directive requires age discrimination to be justified. It’s now up to the UK government to prove to the High Court that their social and employment policies are important enough to justify kicking people out of work at 65. Until then, older workers face more uncertainty about their right to work.
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Ailsa Olgive, Heyday director | 24-Sep-2008 5:17 pm
Heyday reaction
We are challenging this law because it is costing good workers their jobs. If the European Court confirms this opinion, the case would then have to go back to the High Court in London for a final decision. We hope the High Court would not want to remove the choice for people to work in later life if they wish to or if they need to.
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Anonymous | 24-Sep-2008 10:17 pm
heyday case
Why have AGE CONCERN had to take up this case for the workers rights to stay on and work past 65, what happened to the trade unions of the public sector workers, have they no voice.
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Anonymous | 24-Sep-2008 10:49 pm
Due Consideration
As medical science improves and life expectancy increases, enforced retirement to relative poverty on state benefit will eventually prove too heavy an economic and policital burden. In the meantime, the view of the AG, and probably the ECJ in due course, will need to be challenged at a domestic level in regard to the term 'consideration' (within the Appeal procedure set out in the Regulations).
Without interpretation, this term has no tested legal meaning and simply creates an appeal system, which at best degrades the retiring employee forced to plead for their job and at worst is potentially in breach of current Human Rights.
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Paul Epstein QC, Cloisters chambers | 25-Sep-2008 12:35 pm
Heyday
The view which is being put forward here is that age discrimination is less serious than race or sex discrimination and the Government has largely got it right in terms of European law. Furthermore, it leaves the possibility for "justifying" age discrimination in any case wide open.
However, it is far from certain at this point whether this opinion will be followed by the European Court of Justice. There is clearly a jurisprudential fight within the Court of Justice on the nature of age discrimination. In a recent age discrimination case from Spain [Palacios] the ECJ did not follow the entire opinion of the Advocate General.
Furthermore, the case now has to return to the High Court where the Government still have to win the main case and justify forcible retirement at 65 and over as a legitimate aim.
“The advice for employers at this point therefore remains the same: proceed with caution.
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Sarah Phillips, Sacker & Partners associate | 25-Sep-2008 12:38 pm
Heyday
The general gist of the Advocate General’s opinion is that the framework Directive offers Member States some freedom to decide what potential age discrimination is justifiable. In principle, the so-called default retirement age of 65 would appear to be acceptable, although the onus will be on the UK Government to demonstrate that the means justify the ends.
It is important to bear in mind that the Advocate General’s opinion is not binding on the ECJ. So we await further developments.
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Anonymous | 25-Sep-2008 3:14 pm
HEYDAY CASE
i wonder if we could have a responce from the TRADE UNIONS do they support what HEYDAY is trying to achieve, or do they take the view that the GOVERMENT has it right, and that thier members should roll over at 65 and retire, in the hope that it makes work for the youger people, most LOCAL AUTHORITIES have no apprentice schemes, so is it just a cliche to say it will give the jobs to so called younger people.
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Rob Jobes, Unite Representative | 29-Sep-2008 7:58 am
Heyday case
Just a comment on the statement provided by anonymous, I, as a trade union representative, will support the wishes of any of our members where possible and in fact I am scouring through articles such as these in order to support a member who wishes to stay on after retirement age, it looks as though we are fighting a losing battle as it is not compenstion we are after but the members right to work until he no longer enjoys his work. Many good workers are being forced to retire due to cost cutting and nothing else due to loopholes such as these.
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Henry Wynn | 27-Nov-2008 4:00 pm
Retirement
The Government, probably BERR, is due to review the retirment age by 2011, and yet one can find no up-to-date details of any ongoing consultation. This is in adddition to the awaited Heyday ECJ judgment and that of the High Court. Meanwhile academics have started a campaign see our web-page www.ukace.info. Views welcome.
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