In Johns v Solent SD Limited [2008] EWCA Civ 790 the Court of Appeal confirmed the EAT's decision to stay an age discrimination claim brought by an employee who had been dismissed by reason of retirement. The employee had argued that regulation 30 of the Employment Equality (Age) Regulations 2006, which provides an employer with a defence to an age discrimination claim where the reason for dismissal is retirement, is contrary to EC law and therefore void. The tribunal held that the Heyday judicial review case (which seeks the quashing of regulation 30 and was heard by the ECJ on 2 July 2008) was unlikely to succeed and that the employee's case therefore had no reasonable prospects of success and should be struck out. The Court of Appeal agreed with the EAT that the tribunal should not have prejudged the Heyday case and that the balance of prejudice was in favour of staying the employee's claim.

This decision means that the tribunal direction in England and Wales ordering all similar age claims to be stayed pending the outcome of the Heyday case can remain in place. The ECJ's decision in Heyday is unlikely to be delivered before the beginning of 2009. The issue of whether regulation 30 is objectively justified will then remain to be decided by the High Court.