Q&A:The Heyday challenge to Mandatory Retirement Ages

Everything you need to know about Heyday's legal challenge to Mandatory Retirement Ages.

Q: Why is Heyday taking the Government to court?

Heyday is taking this case because it is in the public interest. We’re doing it for people who are thinking about and preparing for retirement. Last year, Heyday ran the biggest ever consultation exercise of people in their 50s and 60s on a range of issues including work and retirement. Around 60,000 replied to the survey, called Have Your Say. Of those expressing a view nearly 80 per cent believe there should be no mandatory retirement ages and around 60 per cent would like to work past the state pension age either on a full time or part time basis. Almost a quarter of all respondents told us that they had already been forced to retire. People in their 50s and 60s tell us they want the right to work. Our aim is to force the Government to listen to their views.

We’re taking the case because mandatory retirement ages are wrong. Age discrimination excludes capable people from work, costing the economy billions in lost output. The Government got it wrong on employment rights for over-65s, leaving this the only group without protection from discrimination. For over thirty years, it’s been unacceptable to force women to stop working when they get married. It is no more fair or rational to force out able workers on their 65 th birthday.

We’re taking the case for people who want or need to work. Modern retirement means having the right to chose when to work and when to stop. Employment has not been a priority for previous waves of retirees, but for this generation the right to continue working is a core area of concern. For many people, who have been victims of pension changes, who don’t have a decent pension or need to continue earning money after 65 for whatever reason: the right to work free from discrimination is not an optional extra, it’s something they need.


Q: What do you hope to achieve?

The age discrimination law (the Employment Equality (Age) Regulations 2006) came into force on 1st October 2006. The legislation is great news for millions of mature workers up to the age of 65. It also offers protection for younger people. But in December 2004, the Government announced the law would include major restrictions on the protection available to people over the age of 65. All employers will be able to force employees to retire at or after 65 and will be able to refuse to recruit anyone over the age of 65.

In December 2006, the High Court agreed to refer the case to the European Court of Justice (ECJ). We hope that, after a preliminary ruling from the ECJ, the High Court will declare that the new law incorrectly implements the European directive outlawing age discrimination. This finding would mean that the Government had acted unlawfully and would have to amend the legislation to give workers over age 65 full employment rights.


Q: Who will this benefit?

Each year tens of thousands of people are forced to retire by their employers. The harm this causes to those who wish to work beyond retirement age, both financially and in terms of the impact on the person’s self determination, should not be underestimated. Over half a million people over 65 choose to work (including over one in ten people in their late 60s). Some of these people are self-employed and not covered by the new retirement law, but at least 300,000 are employees. If mandatory retirement ages are ruled unlawful this group for the first time will have the same job security as younger workers.

Getting rid of a national default retirement age will also help change views about the retirement process, encouraging employers and workers to be more positive about the contribution people can make in their late 50s and 60s. We need to move beyond the current ‘countdown culture’, in which the value of an employee is thought to diminish simply because they are approaching retirement age.


Q: How will this affect employers and the economy?

Retirement ages are staying because the Government buckled to lobbying from employers who were nervous about change. But experts like Lord Turner, the OECD and even the DTI’s (now called DBERR) own economists believe scrapping retirement ages will be good for the economy. The DTI’s own calculation is that scrapping mandatory retirement ages would add up to half a billion pounds to the UK economy – and this could be an under-estimate. Put simply, with more people to recruit from both individual employers and the economy as a whole will benefit. It’s the same argument as applies to there being more women in the workforce, or migrants from other countries – both have unquestionably helped the economy.

Many employers who do not force people out at 65 often talk about the business benefits. The regulation we want to see introduced will not increase red-tape – in fact it avoids the need for the complicated new compulsory retirement procedure. It does not affect normal dismissal procedures – it will still be possible to make employees redundant or dismiss them on grounds of capability. It will have no effect on entitlement to occupational or state pensions.

The business benefits of a mixed-age workforce are now widely recognised. There is clear evidence that both staff turnover and absenteeism are reduced and that motivation and commitment are improved in organisations employing people of all ages. Older people are also key to tackling the skills gap as the UK workforce becomes older.


Q: Won’t this force people to work longer?

No. The legal challenge is about choice. We believe people in their 60s should have the right to work and the right to stop. The legislation we are challenging only affects those who wish to work over 65. It will have no impact on the age at which people become entitled to occupational or state pensions.


Q:This will just make the issue of ‘job blocking’ worse won’t it?

Supporters of MRA argue that older people in the workplace create ‘job blocking’. In 10 years half the British population will be over 50 and the number of young people entering the workforce is already beginning to decline, so there will be fewer people chasing promotions in future. And most older employees reach their 60s and choose to change jobs, downsize or go part time, so job blocking is hardly an issue anyway. Today’s employers surely want to recruit the best person for the job, irrespective of their age.


Q: Will employers have to keep under-performing staff over 65?

We are arguing that people over 65 should be treated in exactly the same way as people under 65. We are not arguing for special treatment and we respect the right of employers to decide what is best for their business, as long as it is not the result of discrimination or prejudice. That means employers should be able to make redundancies, dismiss people on grounds of capability or launch disciplinary proceedings – as long as their decision is not based on someone’s age.


Q: What legislation is Heyday seeking to change?

The litigation is being brought by the National Council on Ageing, the formal name of the charity that operates under the names Heyday and Age Concern. We are challenging the Employment Equality (Age) Regulations 2006 which came into force on 1st October 2006. The regulations implement a November 2000 European directive outlawing age discrimination in employment and training (Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation).

In December 2004, the Government announced the law would include major restrictions on the protection available to people over the age of 65. All employers will be able to force employees to retire at or after 65 and will be able to refuse to recruit anyone over the age of 65.

Heyday believes that by excluding people over 65 from protection the Government has failed to implement the Directive correctly – in breach of their obligations under European law. We are also arguing that the Regulations give employers too much scope to justify direct discrimination on grounds of age – beyond what was intended by the Directive.


Q: How long will the case take?

The ECJ process will take around 18 months, so we expect it to deliver its judgement at the end of 2008 or in early 2009. The High Court will then resume the adjourned hearing of the case – unless the parties manage to achieve a settlement.


Q: Do you really believe you will succeed?

We cannot prejudice the outcome of the case by commenting on the likelihood of success: but we hope that we are successful, for the sake of people who do not wish or cannot afford to retire,.

Taking the Government to court is not a step Heyday is taking lightly. NGOs (non-governmental organisations such as charities) take legal action sparingly and only when they have exceptionally grave concerns. For example Age Concern, which has set up Heyday, supported a case against the Government in 2000 which contributed to a Government climb down on planned cuts to SERPS for widows and widowers.

We feel the Government has let down people who want choice about how to make the transition from work to retirement. We have spent six years arguing that the new law should outlaw retirement ages – in public and behind the scenes, talking to ministers and civil servants. We have reached the end of the line. Litigation is our only option for securing employment rights for people over 65.


Q: Who are the legal teams involved?

Heyday has instructed Robin Allen QC (head of Cloisters chambers) and Declan O’Dempsey. Irwin Mitchell is the firm of solicitors representing Heyday (partner Andrew Lockley; solicitor Kate Fletcher).

The government has instructed David Pannick QC (a leading public law silk) and Dinah Rose QC who is a specialist in employment and discrimination. The solicitor for the DBERR is the Treasury Solicitor’s department.


Q: How much will this cost?

We are unable to predict costs at the moment. We are taking a careful stage by stage approach to the case. If we win, we would expect to recoup all our costs. If, however, we lose, we hope to reach an agreement with the government on their costs. Whether the case wins or loses, there are still gains to be made for older people – including positive publicity about the Age Regulations . By forcing the issue in to the public arena, we will at the very least make sure that the Government conducts its promised review of mandatory retirement ages in 2011.