Two judges this week have launched a discrimination claim against the Ministry of Justice over being forced to retire at 70.

Judge Jeremy Varcoe and Judge Stuart Southgate told an employment tribunal in Berkshire that they had been discriminated against on the ground of age by being put out to grass when they reached their 70th birthdays.

Both men are part-time immigration judges and argue that other immigration judges have been able on reaching 70 to apply for one-year extensions where that was thought in the public interest.

The claim is only the latest of several challenges by judges or lawyers over compulsory retirement. Jack Straw, the Lord Chancellor and Justice Secretary, was forced last year to raise the retirement age for hundreds of part-time judges after another age discrimination claim.

Paul Hampton, a recorder then 65, won a ruling that he had fallen foul of age discrimination laws and Straw had to review the policy and raise the retirement age for part-time judges to 70, in line with that of full-timers.

More recently The Times disclosed that senior judges are seeking a change in the rules to allow those who become justices in the supreme court this autumn to stay until they are 75.

Andrea Ward, an employment lawyer with Hogan & Hartson, said that since the age discrimination regulations were introduced in October 2006, there had been a slow trickle of claims — many involving the legal profession. “Although perhaps not the influx we expected, it is interesting that many of the cases attracting media attention have involved members of the legal profession.”

Unlike other kinds of discrimination, both direct and and indirect discrimination on ground of age can be justified, she said. The issue was whether a retirement age of 70 for judges could be justified as a “proportionate means of achieving a legitimate aim . . . not all workplaces are the same — certainly for the judiciary, experience is vital.”

Meanwhile, the much wider issue of whether a mandatory retirement age in Britain can be justified at all will be ruled on this Thursday by the European Court of Justice in Luxembourg.

In a test case backed by Heyday, an arm of the charity Age Concern, the court will decide whether allowing UK employers to retire people compulsorily at 65 breaches European law

If yes, says Kathleen Healy, employment partner with Freshfields Bruckhaus Deringer, the decision would lead to a “rewrite of the UK’s age discrimination regulations and prompt the need for employers to rethink plans for staff succession”.

More likely, though, is that the court will follow the earlier opinion of the court’s Advocate General, that a mandatory retirement age can be justified and that UK laws are not incompatible with the European directive.

That would be the outcome most welcome to employers, enabling them to continue to require people to retire at 65 provided the correct procedures are followed. It would be a blow to about 260 employees sitting on age discrimination and unfair dismissal claims, pending the Heyday ruling.

A victory on Thursday in Luxembourg will not be the end of the matter, however. The Government will still have to convince the High Court that forcible retirement is a legitimate aim in social and economic policy.

Nick Ralph, a partner at the specialist employment firm Archon Solicitors, said: “Based on recent cases, the decision of the High Court is by no means a foregone conclusion for the Government. It will have to justify the compulsory retirement age with data demonstrating legitimate aims behind the legislation such as the need for older employees to be retired so as to make space for younger employees coming in at the bottom.”

Increasingly, people want to carry on working, says Age Concern. Its survey of workers in their 50s and 60s found nearly 80 per cent were against a mandatory retirement age and nearly 60 per cent wanted to work beyond the state pension age, either full or part-time.

At the very least, the publicity surrounding the campaign and the case will ensure that the Government does review the retirement age, which it has pledged to do in 2011. In the meantime, perhaps it will be the judges and lawyers who lead the way in raising the bar.

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