01 October 2009

Retirement age - time is ticking

Christina Morton
Professional support lawyer | UK

The High Court has handed down its decision in the Heyday appeal (the case brought by Age UK against the Government, challenging the default retirement age of 65). The High Court ruled that it is legal for UK employers to force employees to retire at age 65 – but only just.

Two days before the Heyday trial, the Government announced that it would review the default retirement age of 65 in early 2010. The High Court said that if there had been no indication of this imminent review, or if the default retirement age had been adopted for the first time in 2009, it would have granted relief requiring the selection of age 65 to be reconsidered. The Court indicated strongly that it did not consider the selection of age 65 to be capable of objective and reasonable justification in today’s climate.

However, the Court also accepted that the Heyday case represented an historic challenge to the age discrimination legislation adopted in 2006 and the starting point must the state of affairs then, not now. On this basis, the Court accepted that the UK Government acted within the margin of discretion available to it when it adopted a default retirement age of 65 in 2006.

As a result of the High Court’s decision, any employer relying on the current default retirement age of 65 is – for now – safe from claims of age discrimination or unfair dismissal, provided that it follows the statutory retirement procedure correctly. However at some point in the not-too-distant future the default retirement age is likely either to be raised or removed altogether. Age UK has suggested that any default retirement age should be a minimum of 70 years.

If you are one of the employers against whom a claim has been stayed pending the decision in the Heyday case you now have a number of options. The terms of the general stay on all Heyday cases (which was renewed on 1 June this year) simply provides for those cases to be stayed pending the High Court decision. This implies that the stay will lift immediately now the High Court decision is out, although this may not in practice happen automatically.

You can nevertheless either wait to see whether the Tribunal and/or the claimant in your case seeks to take any further action, or you can take proactive steps towards getting the case finally determined. One option in that respect is to ask the claimant to withdraw on the ground that the claim has no reasonable prospect of success.

Christina Morton Professional support lawyer | London

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