Employees could keep a job into their 70s and 80s under Harriet Harman’s plan to scrap forced retirement

Copyright acknowledged Daily Mail – 11/01/2010
Although this Daily Mail article does not mention it, the Heyday case is an essential backdrop to this interview with Harriet Harman. Ms Harman has told the Daily Mail that the government intends to recommend that the age 65 default retirement age should not be raised to 70 or 75 but rather should be scrapped altogether. A planned review is to be announced shortly.
Under current law (the Employment Equality (Age) Regulations 2006, SI 2006/1031 reg 30), an employee can be required to retire at age 65. In the Heyday case, Age Concern argued that this was unlawful under EU law (the Equal Treatment Framework Directive 2000/78/EC). Age Concern lost. In a High Court judgment on 25th September 2009, the British government won its argument that the provision was lawful as a “proportionate means to achieve a legitimate aim” .
The government’s position was always equivocal. It seems likely that the desire to avoid having a costs order made against it may have played a significant part in both the tactics and the substantive arguments used by the Government. The case brought by Age Concern was enormously expensive.
As to tactics, the government announced just three days before the High Court hearing that it planned to bring forward to 2010 consideration of the desirability of retaining the age 65 default retirement provision of Employment Equality (Age) Regulations 2006, SI 2006/1031 reg 30. This had previously been planned for 2011. The judge in the case explained that this last minute change of stance by the government had influenced his deciding in favour of the government.
As to substance, the government did not argue in the High Court that the default retirement age was desirable, merely that it was justifiable. While this is a real distinction, it is one which Age Concern, saddled with the huge costs of the case following the result, might think inappropriate for a lawmaking government to have relied on.

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