From the 1 October 2006, the Employment Equality (Age) Regulations made it unlawful to discriminate against workers, employees, job applicants and trainees because of their age.

The regulations, however, still allowed employers to compulsorily retire employees at 65. Although this in itself was discriminatory, the exemption was deemed necessary to assist in workforce planning and prevent the need for employers to justify individual retirement ages, which could impact on occupational pensions and work-related benefits.

The National Council on Ageing, under the operational name of, The Heyday Group, challenged this default retirement age of 65. The High Court referred the case to the European Court of Justice (ECJ) for guidance and clarification. A decision from the ECJ is not expected for another 12 months. However, in February, the Advocate General of the ECJ gave an opinion on compulsory default retirement ages in the Spanish case of Felix Palacios de la Villa v Cortefiel Servicios SA. The Advocate General stated that the directive does not affect  national laws that set retirement ages.

Although the Advocate General's opinion is not binding, it is often followed in practice. Whilst we are awaiting the ECJ decision, claims of this nature lodged with employment tribunals are likely to remain pending.