The European Court of Justice has published its decision on the Heyday case, ruling that the UK's default retirement age can be considered legitimate.

The case, which challenged the legality of provisions in the Employment Equality (Age) Regulations 2006, was put forward by the Incorporated Trustees of the National Council of Ageing (Age Concern England), claiming that forcing people to retire at the age of 65 or over without offering compensation is a breach of EU equality legislation.

The regulations, which prohibit discrimination on grounds of age, rule that employees who have reached their employer's normal retirement age, or age 65, may be dismissed for retirement without this being regarded as discriminatory. Age Concern challenged this on the grounds that it does not properly transpose the directive, and said that dismissing an employee aged 65 or over by reason of retirement is contrary to it.

The case was referred to the Court of Justice by the High Court, and has ruled that the directive does not require Member States to draw up a specific list of the differences in treatment which may be justified by a legitimate aim.

John Cridland, deputy director-general at the Confederation of British Industry (CBI), said: "Today's decision by the European Court of Justice is a victory for common sense. Some people can happily work in their existing job beyond the age of 65, but this is not possible for all occupations.

"The current system where there is a default retirement age of 65, but people can request to carry on beyond this age, works well. It provides flexibility, and our research shows that 81 per cent of requests to work beyond 65 are accepted. Companies don't want to lose good people, whatever their age."

Cridland added that an alternative to the default retirement age would not work.

Commented from the legal world has also been in support of the decision. Georgina Jones, assistant solicitor at Sacker & Partners LLP, said: "Recognising that age discrimination is a different kind of animal (compared to other types of discrimination), the ECJ has confirmed that Member States have discretion to permit certain types of age discrimination under national law, provided they can demonstrate that such measures are 'appropriate and necessary'. The baton now passes back to the High Court to make the crucial decision."

- Pensions Age March 2009

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