Employment Flash - 2nd October 2009
Something extra for the weekend, a little Heyday... still in limbo as timely review by HMG lets them out by the side door...
This saga has resumed its' passage in home waters. At 130 paragraphs Blake J's judgment makes for a good bedtime read. However, just on the question of regulation 30 of the Employment Equality (Age) Regulations 2006, SI 1031/2006, the court would have concluded that the designated retirement age (DRA) of 65 was not proportionate if it had been adopted in 2009 rather than 2006 and relief would have been granted requiring the age limit to be reconsidered.
The 65 age limit creates greater discriminatory effect than is necessary on a class of people who are both able and wish to continue to work. A higher age would not have any detrimental effect on the labour market or block access to high level jobs by future generations.
However, it was adopted in 2006 and therefore that was the starting point to consider it. It was not for the court to identify a particular DRA. 65 had support from past UK practice and from continuing practice in some parts of the EU, and from the preponderance of consultees prior to the formulation and implementation of the regulations. No one then had been making a case for 68, and 70 commanded little popular support in the consultations. An appropriate margin of discretion (consistent with the implementation of a European Directive into domestic law) must be given to HMG in the selection of the age for a DRA and in monitoring the impact of 65 as the DRA.
"...the position might have been different if the government had not announced its timely review. I cannot presently see how 65 could remain as a DRA after the review."
The judgment contains consideration of the principles for adjudicating the transposing of a European Directive into domestic law, and parliamentary privilege and the use of parliamentary history.
Employment Team
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