He says Heyday, a spin-off of the charity Age Concern, which is challenging the UK’s compulsory retirement age of 65 through the ECJ, could create a number of problems for insurers who want to employ older people.
He says: “For those insurers wanting to employ older people, unless you can prove objective justification, you will have to provide those benefits to everybody.
“There are a number of ways an employer can deal with this, it can apply an arbitrary limit and hope for the best, which is a very dangerous and they should certainly not do that, they could pay the extra costs or limit the benefit period.
“The most critical option an employer could take, and the easiest way to avoid discrimination, is to just not offer the cover and cut the scheme completely, which means employees will then fall back on state benefit.”
Wheatcroft says the challenge now is finding a way to “write the product in a way that does not attract a charge of being discriminatory”.
Although the advocate general ruled against the Heyday challenge, the ECJ is expected to make a decision in December.