Risks of Retirement Reduced

Published: 24th September 2008

In the challenge to the UK retirement arrangements brought by Age Concern (commonly known as the Heyday challenge), the Advocate General of the European Court of Justice has now delivered his opinion. This makes it more likely that the UK's retirement provisions will be held not to be unlawful age discrimination and contrary to European law, and therefore will be effective.

As you may know, this challenge questions whether the current UK retirement rules are allowed under European law (which usually apply to retirement of employees aged 65 or over). Unfair dismissal and age discrimination claims brought in the UK by anyone apparently lawfully retired are currently being stayed pending its outcome. The Advocate General's opinion is usually (but not always) followed by the full European Court of Justice. The case actually turns upon the technicalities of the implementation of European Directives, but it does appear to make it likely that the UK's retirement regime will not be held to be contrary to European law. However, we will not know this for certain until the full European Court decision (or even potentially the UK Court's decision which will follow it).

Practically, there does remain a risk if individuals are retired under the statutory retirement procedures that such terminations could possibly be unfair dismissal or age discrimination, but this risk is considerably smaller after this Opinion. It is, of course, still important that employers follow the full statutory retirement procedure with advance notice and the right to request to work longer (and ensure that retirement actually occurs on the date stated), for retirements to be fair and not discriminatory (probably).

If this issue has any implications for your organisation please speak to your usual contact within the Mace & Jones Employment and HR team.