Age UK, R (on the application of) v Secretary of State for Business, Innovation & Skills & Ors

When reviewing national legislation implementing an age-discrimination directive, the court must conduct its own proportionality assessment. Governments receive a broad margin of judgment in selecting social-policy aims and methods, but the court must still examine suitability, necessity and fair balance with appropriate intensity.

Social-policy aims need not be stated exhaustively in the legislation. They may be identified from the legislative background, provided the court can test their legitimacy and the proportionality of the measures. A designated retirement age may be lawful where it pursues labour-market objectives and does not compel retirement. The choice of age remains subject to proportionality review.

Age UK challenged the Employment Equality (Age) Regulations 2006, which implemented Directive 2000/78/EC. The challenge concerned Regulation 3, permitting justification of age discrimination, and Regulation 30, establishing 65 as a designated retirement age.

The claimant argued that the Regulations permitted excessive derogation from equal treatment and that age 65 was disproportionate. The Equality and Human Rights Commission supported the challenge to Regulation 30. The court also considered whether Parliamentary materials could be received when assessing the Regulations’ background and proportionality.

1. The claim was dismissed. Regulation 3 and Regulation 30 were not ultra vires the Directive, and no relief was granted.
2. In reviewing transposition legislation, the court must reach its own conclusion on proportionality. A broad margin of judgment is afforded to government on social and economic policy, but this does not reduce the court’s task to bare rationality review. The inquiry includes rational connection, necessity and fair balance, while giving substantial weight to governmental expertise and constitutional competence (paras [34]-[41]).
3. The legality of a prompt challenge to transposition is principally assessed by reference to the social-policy aims identified when the measure was adopted. Later evidence may require governmental review, but government has a broad discretion as to when review is required (paras [32]-[34]).
4. Parliamentary evidence and reports may be received to understand statutory history, policy aims and relevant proportionality considerations. The court must reach its own conclusions and must not impugn, question or decide whether Parliamentary statements are legally or factually correct (paras [50]-[59]).
5. Regulation 3 was compatible with the Directive. The legitimate social aim was maintaining confidence and integrity in the labour market. That aim could be identified from the legislative background, and the flexibility given to employers was a means of advancing it rather than an independent social aim. Legal certainty was not infringed merely because the aims were broad or not exhaustively listed in the Regulation (paras [88]-[97]).
6. A designated retirement age was not inherently arbitrary or disproportionate. It gave employers and employees certainty and planning guidance without requiring dismissal at that age. The government had proved a legitimate labour-market objective and was entitled, in 2006, to select 65 within its discretionary area of judgment (paras [101]-[114], [129]).
7. The judge considered that, if Regulation 30 had been adopted in 2009, or without an imminent review, age 65 would have been disproportionate. The announced review was material to the conclusion that the 2006 measure remained lawful. If retained, the review had to give particular consideration to whether 65 could continue to be justified (paras [115]-[130]).

First-instance judicial review decision. The judgment records an earlier reference to the Court of Justice, which delivered its judgment in C-388/07; the present court then determined the domestic legality of the Regulations.