Age Discrimination and Mandatory Retirement Ages
A mandatory retirement age (MRA) obliges an employee to retire at a particular age. An employer may provide for an MRA explicitly in the employee’s employment contract, or it may be implied into the employment relationship by policy or by custom and practice.
The Employment Equality Acts 1998 to 2021 (the Acts) prohibit discrimination on various protected grounds, including age. A MRA is considered discriminatory unless:
- a legitimate aim objectively and reasonably justifies it; and
- the means of achieving that aim are appropriate and necessary.
The Labour Court recently upheld an employer’s MRA in Pat O’Donnell & Co. v Denis O’Keeffe. Mr O’Keeffe (the Complainant) had been employed as a service engineer with Pat O’Donnell & Co. (the Respondent) since 1989. The Complainant’s employment ceased in 2020 due to his reaching the Respondent’s retirement age of 65. The Complainant applied to the Respondent to continue working beyond the MRA, but this was denied. The Complainant submitted a complaint to the Workplace Relations Commission (WRC) alleging discrimination based on age. He submitted that he was fit to work, and that he was aware of another service engineer who had continued to work beyond the MRA. The Complainant submitted that there was no objective justification or no legitimate aim for having the MRA.
The Respondent submitted that the practice of requiring service engineers to retire at 65 had always been in place. While this was not expressly stated in the Complainant’s employment contract, it had been stated in the Respondent’s employee handbook, the Retirement and Death Benefits Plan, and was consistently applied. The Respondent accepted that another employee, who had previously worked as a service engineer, had worked beyond the MRA. However, that employee had moved to an office-based role five years before retirement and was not employed as a service engineer when they reached the MRA.
The Respondent contended that the MRA was necessary because of the safety hazards associated with the role of service engineer. The Respondent’s policy required employees to retire at 65 rather than conduct mandatory medical exams to assess fitness for work. Also, the MRA was central to the Respondent’s workforce planning strategy as the Respondent sought to match recruitment with retirement dates.
The Labour Court noted that while the Complainant said during the proceedings that he did not know that the MRA existed, he did not explain why he had sought an extension to his employment beyond the age of 65. The Labour Court determined that a MRA did exist for service engineers on reaching 65.
The Labour Court then considered whether there was an objective justification for the MRA. The Labour Court took account of the undisputed evidence concerning the safety-critical nature of the role, the training involved to qualify as a service engineer and the investment required by the Respondent to train apprentices to the standard the Respondent requires. The Labour Court accepted that:
“In this case, the legitimate aim is to ensure a through flow of appropriately qualified service engineers and to ensure that employees are not required to continue working until they are unable to perform the duties.”
The Labour Court determined that the MRA “was necessary, reasonable, proportionate and accordingly amounted to objective justification for that maximum retirement age”.
Mandatory Retirement Ages Increasingly Difficult to Defend
While this case is positive news for employers with MRAs, the trend has been against MRAs being upheld, and it has become increasingly difficult to defend MRAs before the WRC and the Labour Court in recent years. The WRC and the Labour Court often find in favour of employees challenging a MRA because:
- the MRA is not applied consistently (i.e. exceptions are made);
- there is no legitimate aim for the MRA;
- the MRA is not necessary to achieve the employer’s aim(s); or
- a combination of these and other reasons.
Recently, in Barbara Geraghty v The Office of the Revenue Commissioners, the WRC made an award of €82,000 (being the maximum award possible of 104 weeks remuneration) to a civil servant who was required to retire at 65. The civil servant highlighted that many other members of staff were permitted to continue their employment until the age of 70. The Adjudication Officer (AO) stated that “it is hard to see from all the evidence any Objective Justification being advanced to justify the …forced retirement of the Complainant when so many colleagues were allowed remain to age 70.” The AO stated that the respondent had failed to meet the high standard of proof required to justify the retirement age.
Another recent case, A Senior Staff Nurse v A Nursing Home (In Liquidation), saw another maximum award granted to an employee forced to retire at 65. The AO noted that while the employee’s employment had been initially extended by a one-year, fixed-term contract (FTC), there was no objective justification for requiring the employee to enter the FTC instead of continuing her employment on her pre-MRA employment contract. In addition, the employer did not meaningfully engage with the employee as required by the Code of Practice on Longer Working when she requested to work beyond the expiry of the FTC. There was also no objective justification for the termination of the employee’s employment on the expiry of the FTC. It is important to note from this case that contracts extending employment beyond the MRA, as well as MRAs themselves, may fall foul of the Acts unless they are objectively and reasonably justified by a legitimate aim and the means of achieving that aim are necessary and appropriate.
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For more information on employment-related matters, please contact Jeffrey Greene, Catherine O’Flynn or your usual William Fry contact.
- Pat O’Donnell & Co. v Denis O’Keeffe EDA2133 (available here)
- Barbara Geraghty v The Office of the Revenue Commissioners ADJ-00000031 (available here)
- A Senior Staff Nurse v A Nursing Home (In Liquidation) ADJ-00027325 (available here)
Contributed by Jack Feehan
