UK/EUROPE - The European Court of Justice (ECJ) has set a date for the hearing of a legal action, claiming the UK government has breached age discrimination regulations by allowing employers to set a mandatory retirement age of 65.

The case is being brought by Heyday and Age Concern as the incorporated trustees of the National Ageing Council and will be heard on July 2, 2008 following its referral from the UK High Court in September 2007.

Heyday, which is part of Age Concern, brought a judicial review against the UK's Department of Business, Enterprise and Regulatory Reform (BERR) in relation to the parts of UK age discrimination regulations - which came into effect for pensions on December 1 2006 - that allow employers to reject job applicants over the age of 65 and to force employees above this age to retire if employers follow the correct procedures.

The case has been referred to the European court after the UK High Court made an order asking the ECJ for "an interpretation of the relevant European law", at which point the High Court intends to use this to rule on whether the age regulations properly implement EU law.

All employment tribunals relating to age discrimination cases have been put on hold at present until the ECJ ruling - which is expected before the end of the year - as employees could claim compensation if it is decided the UK is in breach of EU law.

The case is being heard by the ECJ earlier than expected - Age Concern previously predicted the action would not come before the court until late 2008 or early 2009 - and it will decide on issues including: 

The scope of the EU directive on national rules relating to retirement ages; The definition of direct age discrimination and the justification defence, and
The test for the justification of direct and indirect discrimination.

The hearing follows the ECJ's decision in October 2007 to reject a claim of age discrimination by Félix Palacios de la Villa against his Spanish employer Cortefiel Servicios SA over a mandatory retirement age of 65. (See earlier IPE article: ECJ rejects retirement age discrimination claim)

At the time, it was claimed the rejection would harm Heyday's chance of success, however Age Concern highlighted a recent ruling by the UK Court of Appeal - Johns Vs Solent SD - allowing an employee to appeal against the loss of their job on the grounds of age.

Age Concern claimed the judge ruled the employment tribunal should be kept on hold until the findings of the ECJ are published, as the decision about the Heyday case "could not be predicted", as there are "clear differences between the Heyday case and a similar legal action brought in Spain known as the Palacios case".

Heyday and Age Concern claimed the legal victory in the Johns Vs Solent case was important as if Mrs Johns had lost the case and the right to challenge forced retirement at 65, there would be no possibility of legal redress or compensation even if Heyday win the ECJ case.

Ailsa Ogilvie, director of Heyday, said: "The 1.2 million people in the UK working beyond retirement age do so only at the grace of their employer. Your right to work ends at 65 because of the default retirement age.

"Our right to work should not be based on our birth certificates, but on skills and motivation. The government's decision to allow employers to sack people at 65 completely contradicts its stated aim of encouraging longer working lives," she added.

Meanwhile Steve Bee, head of pensions strategy at Scottish Life, highlighted in his blog the 'Beehive' that "if Heyday win their case then it would open the floodgates for workers forced to retire to claim compensation from their former employers. It's a big deal and will, one way or the other, change our notion of retirement".

He pointed out many people now work beyond age 65 " not because they want to, but because they have to", and warned this is why the UK needs "proper reform that will enable people and their employers to build worthwhile pension savings".

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