The challenge asks two key questions about the default retirement age introduced by the Employment Equality (Age) Regulations 2006, which allows employers to retire on or after age 65 (or the employer's higher contractual retirement age), provided that retirement is the real reason and the correct procedures have been followed.

Firstly, is the default retirement age introduced in the UK contrary to the Framework Directive? The early indications about the success of this challenge have not been promising. In February, the Advocate-General gave his opinion [subscription required] that a national law in Spain that allows clauses to be included in collective agreements allowing employees to be compulsorily retired when they reach a specified age was lawful. This Spanish case raises similar issues to the Heyday challenge and, although Advocate-General opinions are not binding on the ECJ, they tend to be followed in the majority of cases. And in July, an employment tribunal [subscription required] denied a request that proceedings in a claim for unfair dismissal and age discrimination be stayed until the outcome of the Heyday challenge, stating that the opinion in the Spanish case was ’lengthy and well-argued’ and the claimant’s chances of success were therefore remote.

The second key question challenges the UK’s approach to justifying direct discrimination and is perhaps going to be the more interesting in the long run. The UK Government shied away from the approach in the Directive, which gives examples of legitimate aims that justify less favourable treatment, on the grounds that ‘an exhaustive list of legitimate aims for direct discrimination would be too restrictive and prescriptive’. Instead, the test for justification in the age discrimination Regulations is whether or not the less favourable treatment is ‘a proportionate means of achieving a legitimate aim’. The interpretation of this phrase is being left to the UK courts and, given that there are likely to be a lot of direct discrimination claims (particularly in relation to recruitment), this is a crucial issue.

But with the long delay in finalising the wording of the questions and the usual time for the ECJ to give decisions being 18 months, it will be a long time before we have any answers.