The Advocate-General’s opinion in the Heyday case has attracted considerable press coverage in recent days. Many of these reports however have tended to overstate the position.
By way of background, Heyday is a part of Age Concern and the case is a challenge, brought in the UK courts, to the right of employers under UK law to require staff to retire from age 65. The challenge asserts that the UK age regulations fail to give effect to the requirements of the EC Equal Treatment Framework Directive. The UK court has therefore referred the interpretation of the Directive to the European Court.
The Advocate-General is widely reported in the press as having backed the current UK legal position, but in fact his opinion does not go as far as that. What the Advocate-General has actually said is that this right of employers under UK law can be allowed under European law, but only if it is "objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market”, so long as it does not appear to be an inappropriate means of achieving that aim.
So, even if the European Court of Justice were to follow the Advocate-General’s opinion, this would only result in the underlying question (of whether the ability to impose a retirement age of 65 under UK law is justified by such a legitimate aim) having to be referred back to the UK courts. In any event the European Court is not bound to follow the opinion and, although historically the Court has tended to follow the Advocate-General’s opinion in most cases, the position has become much harder to predict in employment cases over the past couple of years.
The European Court is expected to give its decision early next year.
For further information, please contact:
Claudia Georgiades on (+44) 20 7456 3037 or alternatively claudia.georgiades@linklaters.com
