Regular readers may recall I’ve been following the tortoise like progress of the challenge against the “default retirement age” (“DRA”) of 65 that is enshrined in the Age Discrimination legislation. It is becoming a bit like the case of Jarndyce v Jarndyce in Bleak House, the Chancery case that went on for so long no one could remember what it was originally about. Basically, Heyday, part of Age Concern allege that having any fixed retirement age is inherently discriminatory. The Age Discrimination Regulations allow discrimination only if it can be objectively justified – ie that the employer has a good reason for imposing the restriction. In this case the Defendant is the government.
Last September the Advocate General of the European Court of Justice produced his opinion stating that the DRA was not in breach of the Equal Treatment Framework Directive and, on the issue of whether having a DRA at all was discriminatory, he recommended that the matter be referred back to the UK courts for a decision. The ECJ has followed this recommendation, as expected and so the whole case grinds on.
Commentators seems split over whether this is good news for employers or bad for employees. It certainly is disappointing for all those people whose cases in the ET have been stayed pending the decision, because it will be several months before the High Court hears it and many more months before any subsequent appeals are held thereafter. It doesn’t help employers either as they won’t know where they stand with employees coming up to 65. Finally, it doesn’t help Employment Tribunals because more and more age discrimination claims are being lodged and then getting blocked in the system awaiting the final result. Like Jarndyce v Jarndyce, this one will run and run.
This article will appear in the “Docklands” and “Peninsula newspapers week commencing 9th March.