Age discrimination claims have been gathering momentum after what many perceived to be a slow start following the commencement of the Employment Equality (Age) Regulations in October 2006. Figures published by the Employment Tribunals Service in March 2009 for 2007/2008, the first full year of the Regulations operation, show 2,946 claims accepted. A drop in the ocean compared to the number of sex discrimination and equal pay claims, but not so far behind race (4,130) or disability (5,833).

Meanwhile, on 5 March, the ECJ finally gave its decision in the Heyday case, (National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform (C-388/07)). In Heyday it was argued that the Regulations did not give proper effect to Council Directive 2000/78/EC (‘the Directive’). The broad issue was whether the national rule which permits employers to dismiss employees aged 65 or over by reason of retirement was contrary to the Directive. Three key questions arose: firstly, does such a rule fall within the scope of the Directive at all? Secondly, is the justification provision in reg 3 of the Regulations compliant with the Directive? Regulation 3 allows for any discrimination to be justified if it is a proportionate means of achieving a legitimate aim. Heyday argued that the Directive allows justification only in respect of defined types of differences in treatment, such as the list found in art 6(1) of the Directive. Thirdly, is there a difference between the tests for justification for direct discrimination and indirect discrimination?

The ECJ held that the national rule does fall within the scope of the Directive. Secondly, that art 6(1) does not preclude a measure, such as reg 3 of the Regulations, which does not contain a list of aims justifying discrimination. However, whether the approach taken by reg 3 is in fact justified under art 6(1) is a matter for the English courts, taking account of member states discretion in social policy matters. Thirdly, the ECJ rejected the argument that there was a distinction in the test of justification between direct and indirect discrimination.

So the case returns to the English courts to determine whether reg 3, and the retirement at 65 provisions are justified means of achieving legitimate social policy objectives. For the moment, nothing in the ECJ decision causes any change of approach. It is likely that Heyday’s best chance of success was in front of the ECJ, and the domestic court will not be sympathetic to the challenge. As to the alleged difference in the justification test between direct and indirect discrimination, the EAT in Seldon v Clarkson, Wright & Jakes [2009] IRLR 267 Elias J had already reached the same conclusion.

According to the EAT, tribunals have been having difficulty in applying the existing test of justification. On two occasions Elias J has upheld appeals on the basis that the tribunal had identified legitimate aims, but had failed properly to conduct a balancing exercise as to whether the measures applied were a proportionate means of achieving those aims (MacCulloch v ICI [2008] ICR 1334, Loxley v BAe Land Systems (Munitions and Ordnance) Ltd [2008] ICR 1348). If there is a trend developing, it is that it would seem relatively easy to establish legitimate aims, but that tribunals need to pay more attention to making a careful objective assessment of whether a particular measure is a proportionate means of achieving those aims. The tribunal is not permitted to apply a band of reasonable responses test. The focus for employers must be on presenting evidence as to why and how a particular measure achieves its aims, and why a less discriminatory measure would not have been effective.