The charity Heyday’s legal challenge on the right to work past the age of 65 has reignited the debate among recruiters about the worth of age discrimination legislation in the UK.

Employment lawyers are predicting it looks likely that the European Court of Justice will follow the Advocate General’s recommendation to throw out the challenge that Britain’s default retirement legislation, giving firms the right to retire staff at 65, is unlawful. It also leaves the hundreds of age discrimination tribunals cases, on hold until a conclusion is reached, in limbo.

Currently, only 11% of the workforce work beyond state pension age but the Chartered Institute of Personal Development, which has renewed calls for the government to review age discrimination legislation, published research last week saying 38% of people want to work past 65. And 31% of the rest of those polled would consider it if part-time work was available.

But Jill Barnes, owner of mature workers recruiter 40 Plus, disagrees saying age discrimination laws were unnecessary.

“Why should companies be forced to keep people on past the age 65?” the outspoken 72-year-old told Recruiter.

Barnes, who has just placed four candidates over the age of 70 in full-time positions, says she has not encountered problems with age discrimination from clients.

“If somebody is capable of doing the job to a required level then there is no reason not to employ them,” she added. “If they are not capable then they shouldn’t be employed. It is not about age, it is about the ability to do their job.”

Barnes said companies should not be forced to keep an employee over 65 on who is “doddery and incompetent” just because the government says they should be there. She said it was a question of demand. “Where there is a shortage of skills, such as carpenters, there is no reason why experienced carpenters over 65, who are fit, should not be able to work.”

Barnes, who places people in temporary, part- and full-time roles mostly in smaller firms, said legislation will only encourage more unnecessary tribunals.

Employers Forum on Age (EFA) says precedents have already been set with several high profile companies, including banking giant HBOS, successfully scrapping a retirement age for its staff.

Catharine Pusey, EFA director, said the Advocate General’s comments leave us no further forward and is calling for the government to remove the retirement age, not just review it by 2011.

She told Recruiter: “The situation still hinges upon whether the UK government can objectively justify the inclusion of a default retirement age in the age discrimination legislation. This would mean that we rely on the enlightened employers, many of them our members, to promote policies which make no assumptions about people’s employability based on age.”

Pusey warned it was not just attitudes to working beyond 65 that need to change but with an ageing population and skills shortages it was a fiscal reality that the UK economy can no longer afford a culture of early retirement. “Far from being a burden, this new flexibility has resulted in significant business benefits; filling skills gaps and keeping valuable members of their workforce.”

Martin Lloyd-Penny, who owns and runs Matureaccountant.com, told Recruiter that unfortunately ageism was “alive and well” in the UK in 2008, despite the Age Discrimination Act.

“This is ironic when you consider that we have a pensions time bomb, baby-boomers potentially retiring into poverty, an ageing workforce that needs to continue to work beyond the normal retirement age and an ever-increasing skills gap as fewer people are coming into the labour market every year,” he told Recruiter. “According to Mintel, in 2009 there will be 38m people of working age in the UK, of which the largest proportion will be aged over 45; so employers and attitudes have to wake up to the reality and capitalise on the vast experience that is available but which in many cases is going to waste.” He said his client SMEs understand the value of older workers who are available at short notice, hit the ground running, need minimal training and supervision, are not on a career path and are happy to work part-time.

Head of employment at law firm LG, Yvonne Gallagher, told Recruiter that the initial judgement would effectively leave a “gaping hole” in protection for older workers. “What it amounts to is a two-tier anti-discrimination regime where sex and race are untouchable but there’s only qualified protection for older workers.”

Meanwhile, diversity consultant Linbert Spencer said he doubted that the ruling would have much impact on UK workplaces. Speaking last week to an audience of HR staff from legal firms, Spencer said he anticipated that companies who value older workers would continue to do so, while environments that are less friendly to older employees would also stay their course.

It is clear that whatever happens in the Heyday case, recruiters will be poised to take advantage of the additional experienced and skilled older workforce which business will have to tap into if they are going to succeed in the future.