The issue as to whether mandatory retirement ages are inconsistent with the Equal Treatment Directive has now been considered by the ECJ in reference to another (Spanish) case.
The ECJ ruled that a compulsory retirement age set by national law, although discriminatory, was not incompatible with the requirements of the Directive. The prohibition on any discrimination on grounds of age must be interpreted as not precluding national legislation allowing compulsory retirement clauses contained in collective agreements where such clauses provide as sole requirements that workers must have reached the set retirement age and must have fulfilled the conditions set out in the social security legislation for entitlement to a pension, provided:
• the measure, although based on age, is objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market; and
• it is not apparent that the means put in place to achieve that aim of public interest are inappropriate and unnecessary for the purpose.
The ECJ accepted that the Spanish practice of allowing the inclusion of compulsory retirement clauses in collective agreements was adopted as part of a national policy which sought to promote better access to employment by a better distribution of work between different age groups, even though this was not stated precisely in the national legislation.
In June 2007, an application for a stay of proceedings until the ECJ’s decision on the Heyday challenge was struck out by the Southampton Employment Tribunal (Johns v Solent SD Ltd.). However, the Employment Appeal Tribunal has allowed the employee's appeal against that decision and the Employment Tribunals Service has put all British retirement age discrimination cases on hold pending the ECJ’s ruling. This is not expected until at least 2009.