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In September 2009, the High Court ruled that the UK’s default retirement age of 65 years is lawful. This follows the European Court of Justice ruling in March that the EU equal treatment framework directive did not preclude such a measure but that the UK’s default retirement age had to be justifiable in terms of a legitimate labour market policy objective. However, the High Court indicated that the default retirement age should be abolished or raised following a review by the government in 2010.
On 25 September 2009, the High Court in the UK ruled that provisions in the Employment Equality (Age) Regulations 2006 (UK0603029I) enabling employers to force employees to retire at the age of 65 years were lawful.
The ruling represents the final outcome of a legal case against the UK government by the National Council on Ageing (which operated under the names of Age Concern and Heyday and is now part of Age UK). The campaign group claimed that the default retirement age (DRA) of 65 years was incompatible with the EU framework directive on equal treatment in employment and occupation (Directive 2000/78/EC).
The UK government had previously announced that it is to bring forward a planned review of the DRA to 2010 (UK0908019I).
In August 2007, the High Court referred the issue to the European Court of Justice (ECJ) for a preliminary ruling. In a judgment issued in March 2009, the ECJ found that the DRA was, in principle, capable of being justified under the EU framework directive. Article 6(1) of the directive gave the option of derogating from the principle of non-discrimination on grounds of age only in respect of measures justified by legitimate social policy objectives, such as those related to employment policy, the labour market or vocational training. The ECJ stated that it was for the national court to ascertain whether the UK’s DRA was ‘consonant with such a legitimate aim’ and whether the ‘means chosen were appropriate and necessary to achieve that aim’. The directive ‘[imposed] on Member States the burden of establishing to a high standard of proof the legitimacy of the aim relied on as a justification’.
The case then returned to the UK courts and, on 25 September 2009, the High Court held that the government had demonstrated that, in introducing a DRA, it did have legitimate social policy and labour market objectives. According to the court, the DRA aimed to avoid an adverse impact on the provision of occupational pensions, enable the planning of work and retirement, and encourage saving for retirement. Moreover, the DRA was a proportionate way of giving effect to the social aim of maintaining confidence in the labour market. It did not introduce a mandatory retirement age affording no discretion to either the employer or the employee. It merely enabled the employer to retire an employee at the age of 65 years without it being at risk of violating the law.
The High Court said that there were compelling reasons why an age above 65 years could have been chosen, given that creating a change of culture with respect to retirement and age discrimination was one of the government’s aims and that the age of eligibility for a state retirement pension is to increase to 68 years. If the DRA had first been adopted in 2009, or if there had been no indication of an imminent government review, the High Court stated that it would have concluded that the selection of age 65 was not proportionate. However, it held that the introduction of a DRA of 65 years in 2006 was not beyond the government’s competence, given the widespread UK practice of retirement at age 65 years and the broad support for age 65 from the parties consulted at the time, even though it could not see how age 65 could remain as the DRA after the government’s review in 2010.
Reaction to the outcome of the case was mixed. The Deputy Director-General of the Confederation of British Industry (CBI), John Cridland, called the ruling ‘a vital victory for common sense’, whereas the General Secretary of the Trades Union Congress (TUC), Brendan Barber, emphasised that it would be ‘a blow to working people who need, or want, to work beyond 65’.
Age Concern, the campaign group that initiated the case, commented: ‘Despite the judgment‚ ministers still have the opportunity this side of a crucial general election to give real help to people in their 60s by outlawing forced retirement. They should amend the Equality Bill which is currently making its way through parliament’ (UK0905029I).
Mark Hall, IRRU, University of Warwick