Author: Kate Dodsworth

Issue: December 2009

Publication: EADT

You may be aware that the highly anticipated High Court decision in R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills (“Heyday”) was delivered in September 2009. This long-running litigation challenged the default retirement age (“DRA”) of 65, which was introduced by the Employment Equality (Age) Regulations 2006.

Having a DRA means that, at the moment, as long as employers follow the correct procedure, employees can be forced to retire at 65. No other reason or justification is needed and employers are not even required to give employees a reason for terminating their employment, other than by virtue of retirement. Employees do have the right to appeal the decision to dismiss them, but in reality this is a nonsense, as the employer will merely reiterate that the employee has reached 65 and therefore retirement is a fair reason for the dismissal. There is an ability to request to work post-65 and although employers are under a duty to consider such requests, there is no obligation to grant them.

Only a couple of days before the Heyday hearing was due to begin, the government announced that it would review the DRA in 2010. Many commentators took this as a strong indication that the government thought it would lose! Although the High Court did find that the DRA is lawful, it was also very clear in saying that had the DRA been introduced in 2009 and, interestingly, had the government not intended to review the DRA, they would have deemed the DRA to be unlawful and the government would have lost.

The High Court issued strong guidance to the effect that the DRA should either be abolished or raised following the review.

Whilst we shall all await the results of the review with baited breath, the current procedure is still good law and employers should continue to follow it when retiring employees. However, it is almost inevitable that the law will change in the not too distant future and therefore employers should keep an eye on this and take advice in readiness for amending their retirement policies.

Published with kind permission of the EADT.

Other articles