Age old questions

Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform

Under the 2006 age regulations, employers are allowed to dismiss employees when they reach the normal retirement age or, if there is none, age 65. In Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform (IDS 873), the European Court of Justice (ECJ) said that it is legal for member states to have a compulsory retirement age as long as they can justify it.

Basic facts

The National Council on Ageing (better known as Heyday) asked the High Court to judicially review a number of provisions of the Employment Equality (Age) Regulations 2006, arguing that they did not properly transpose various provisions of the EC Equal Treatment Framework Directive (2000/78) into UK law.

Agreeing that there was some uncertainty, the High Court asked the ECJ to answer the following questions:

• Did national rules as set out in regulations 3(1), 7(4) and 30 come within the scope of the directive?
• Under the directive, can member states introduce legislation that allows for differences in treatment if those differences can be shown to be "a proportionate means of achieving a legitimate aim"; or do they have to be set out in a list of some sort?
• Under the directive, can member states have the same justification test for direct and indirect age discrimination?

Relevant law

Regulation 3(1) of the UK regulations allows for direct and indirect discrimination on the ground of age as long as the employer can show that the difference in treatment is a “proportionate means of achieving a legitimate aim”.

Regulation 7(4) allows employers to discriminate on the ground of age when recruiting staff who are 65 and over; and regulation 30 allows employers to dismiss employees “at or over the age of 65 where the reason for the dismissal is retirement”, as long as they follow a specified procedure.

Article 6(1) of the directive allows member states to exclude certain differences of treatment on grounds of age if “they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.” It then sets out a list of three possible differences of treatment.

ECJ decision

Question one

The ECJ said that regulations 3(1), 7(4) and 30 did not “establish a mandatory scheme of automatic retirement” as such. Instead, they laid down the conditions under which employers could modify the principle prohibiting discrimination on grounds of age and dismiss or refuse to recruit a worker because they were 65 or over.

This provision therefore had to be treated as a rule relating to “employment and working conditions, including dismissals and pay” and came within the meaning of article 3(1)(c) of the directive.

Question two

Age Concern argued that because article 6(1) of the directive contained a list of “objective and reasonable justifications” for differences in treatment, member states were therefore obliged to do the same thing when it came to drawing up their own legislation.

However, the ECJ disagreed, saying that although the directive was binding “as to the result to be achieved”, it was down to national governments to decide on the “forms and methods” of implementation.

Article 6(1) could not therefore be read as requiring member states to draw up a list of the differences in treatment that could be justified. However, as the UK did not have such a list, it was for the High Court to decide whether the regulations were in pursuit of legitimate aims within the meaning of the article.

Question three

The ECJ did not think it was necessary to decide whether a different standard of proof applied for direct and indirect discrimination, but that member states had to show that their aims were legitimate “to a high standard of proof”.