The novel approach of the ECJ in Mangold v Helm (bulletin 24/11/05,  IRLR 143) has been rejected by the EAT in the case of Lloyd-Briden v Worthing College.
Mr Lloyd-Briden's claim had been struck out pursuant to s.109 ERA 1996 (as it then was) because he was older than 65 at the time he tried to claim unfair dismissal. He relied on Mangold to suggest that the provision was contrary to the general EU principle against age discrimination, and therefore should be set aside.
In the EAT, Wilkie J. held that the principle in Mangold must be limited to cases where a Member State had breached part of the Directive (in Mangold the German government was found to have breached Art.18 of the Framework Directive), since otherwise the Directive itself determines the extent to which EU law intervenes to affect the outcome of domestic employment litigation. Accordingly, the ET's decision to apply s.109 contained no error of law and the appeal was dismissed (paragraphs 21-22).
Thanks to Karen Moss of 3 Paper Buildings, counsel for the successful Respondent, for telling me about this case