Age UK, R (on the application of) v Secretary of State for Business, Innovation & Skills & Ors [2009] EWHC 2336 (Admin) (25 September 2009)


This High Court decision, known as the Heyday case, has ruled that the default retirement age (DRA) set by the Government was lawful at the time it was introduced in 2006 but questions whether it should apply in future.

Background to the Heyday case

Heyday, supported by Age Concern applied for a judicial review of the Employment Equality (Age) Regulations (2006) - SI 1031/2006 - which came into force on 1 October.

Regulation 30 states that once an employee has reached their employer's normal retirement age or age 65 if their employer does not have a normal retirement age he or she can be dismissed for reason of retirement without such treatment being regarded as discriminatory. There are no such rules for employees under 65 years of age. Heyday sought to challenge this.

It was argued that these regulations contravened European Directive 2000/78, which outlaws age discrimination, and as a result leaves people over 65 without the right to choose to continue working.

The case was heard by the High Court on 6 December 2006 and permission was granted to refer it to the European Court of Justice who heard the case as R (Incorporated Trustees of the National Council on Ageing (Age Concern England)) v Secretary of State for Business, Enterprise and Regulatory Reform (Case C-388/07); [2009] WLR(D) 82.

The European Court of Justice decision

The European Court of Justice (ECJ) found that national rules allowing compulsory dismissal at retirement age and non-recruitment of persons of retirement age were not contrary to community law provided they were justified by legitimate social policy objectives and were appropriate and necessary for achieving such objectives.

It was therefore up to the national court to decide whether UK legislation reflects such a legitimate aim and, second, whether the means chosen were appropriate and necessary to achieve it.

Return to the British courts

The case was heard in the High Court in July 2009. The High Court dismissed the case stating that the DRA was not unlawful when introduced by the government in 2006, but that there was now a "compelling" case given the state of the UK economy for considering an extension of the DRA.

"If Regulation 30 had been adopted for the first time in 2009, or there had been no indication of an imminent review, I would have concluded for all the above reasons that the selection of age 65 would not have been proportionate. It creates greater discriminatory effect than is necessary on a class of people who both are able to and want to continue in their employment. A higher age would not have any general detrimental labour market consequences or block access to high level jobs by future generations. If the selection of age 65 is not necessary it cannot therefore be justified. I would, accordingly, have granted relief requiring it to be reconsidered as a disproportionate measure and not capable of objective and reasonable justification in the light of all the information available to government."

The Government intends to review the default retirement age in April 2010.

The Equality and Human Rights Commission (EHRC) is asking the Government to abolish the DRA using the Equality Bill.

You can download the judgements from the links below.

More information

  • european court of justice
  1. the judgement
  2. press release 19/09 (pdf)