Heyday: why you're wrong to be relieved

The Heyday challenge to a state retirement age of 65 had its initial European judicial scrutiny and all the current uncertainty for employers is going to continue for a good while yet.

To recap, Heyday, an off-shoot of the National Council on Aging, brought a claim against the Government for introducing a national default retirement age of 65. The UK courts quickly sent some preliminary points off to Europe for clarification. There, the Advocate General (AG) has given an advisory opinion before the European Court of Justice (ECJ) itself considers the issues.

In basic terms the AG's Opinion is that the UK retirement provisions are within the scope of the Directive and, as such, may be age discriminatory, but potentially capable of being justified.

The AG does not address the substantive question as to whether the UK default retirement age is justifiable, nor was he or the ECJ asked to. So no one has won this game; the AG has merely marked out the pitch. Assuming the ECJ follows the AG Opinion, the matter will still need to go back to the High Court who will need to determine whether the Government can establish a legitimate aim and whether this aim can be objectively justified.