Making hey

Over the last three years the case, which became known as Heyday because it was brought by the Age Concern organisation of that name, has had many twists and turns.

In 2006, Heyday brought a judicial review action against the Government, arguing that UK Employment Equality (Age) Regulations were discriminatory. This, argued Heyday, was incompatible with the European Commission’s Equal Treatment Framework.

The case made its way to the European Court of Justice before being referred back to the High Court for further discussion. It was one of the last cases to be heard before the summer break and one of the first to receive a judgment in the new legal year.

Blake J ruled that employers can objectively justify retirement of employees at the age of 65 so long as those justifications are in line with wider social aims. This, it is important to note, is specific to the employer/employee relationship and not to the rules governing partnerships, which we shall come to later.

Blake J made it clear that had the Government not announced it would bring forward a review of the default retirement age to 2010, he would have instead found in favour of the claimant.

That all important Government announcement was made just days before the case was heard in the High Court in July. It was, as Paul Epstein QC of Cloisters Chambers highlighted, a “technically astute” announcement. Or, as another claimant employment partner put it, “a check-mate move”, which effectively sealed the fate of the claimant.

In matters of such huge importance to wider public policy the presiding judge is walking a judicial tightrope. As Blake J himself highlighted: “There’s an acute policy tension in this area.”

One employment partner described the judgment as “weird”, adding that Blake J “seems to have a lot of personal opinion on the matters”.

Beachcroft employment partner Rachel Dineley (pictured) says Blake J has attempted to find a balance between the perceived merits of the claimant’s case and the havoc that would ensue had the claimant won.

Such havoc would arise through the myriad of age discrimination cases waiting in the wings.  Many of these cases, which were stayed in 2006 pending the outcome of the Heyday case, will be laid to rest given the ruling – unless the claimant appeals, which is highly unlikely given the wider Government review. Had Heyday won even some of its arguments it could have resulted in claims within the public sector proceeding -in direct reliance on the European Framework Directive – while those in the private sector would fail, pending an amendment to the 2006 Regulations.

She said: “As it is, no one can be complacent. It’s clear that the default retirement age of 65 has very limited life  in it and employers should be managing their staff effectively, to part with underperformers, and retain skills and talent, irrespective of age. In the long run, this is what will distinguish the best employers from their competitors.”

Blackstone Chambers’ Dinah Rose QC defended the claim against the  Secretary of State For Business Innovation and Skills, instructed by the Treasury Solicitors.

Cloisters’ Robin Allen QC, instructed to represent Age UK, formerly Age Concern and Heyday, by Irwin Mitchell.

The same silk line up appeared in a similar case, which saw lawyer Leslie Seldon challenge the right of his former firm, Clarkson Wright & Jakes, to dismiss him at 65 (see blog).

Allen at Closiers was instructed by BP Collins head of employment Jo Davis to represent Seldon while Rose was instructed by the Department of Business Innovation and Skills to act as an intervenor and defend the Government’s stance on partnerships.

It is a brave case to bring, particularly given the outcome of Heyday.

Age discrimination is an area short of a significant body of law because the benefits of  bringing a test case in this area are minimal, as this case testifies.