---

Resistance to retiring causing ‘huge issues’

The fact that an increasing number of people in Ireland now want to work beyond the State pension age of 66 is causing “huge issues” from an employment-law perspective, delegates at the Annual Review of Employment Law 2023 hybrid event (29 November) were told.

“The French Government’s proposal to raise the retirement age by two years to 64 ignited a months-long firestorm of protests earlier this year,” said Denise Moran (senior associate, Matheson LLP) at the event.

“Closer to home, the imposition of a retirement age is presenting itself in a very different way; many organisations are seeking to impose mandatory retirement ages on employees who, quite simply, do not want to retire.”

The situation is being exacerbated by people having the option, from January 2024, to continue working up until the age of 70 in return for a higher State pension. In addition, the Department of Enterprise, Trade and Employment is currently considering measures that would preclude employers from imposing contractual mandatory retirement ages below age 66.

Discrimination claims

The resistance to retiring at a certain age in Ireland has led to a considerable number of claims, high-profile cases, and substantial compensation awards.

Moran pointed to the Workplace Relations Commission (WRC) 2022 annual report published earlier this year, which revealed a 176% increase in age-related discrimination complaints arising under the Employment Equality Acts 1998-2021 (EEA).

Direct discrimination occurs where one person is treated less favourably than another person is, has been, or would be in a comparable situation on any of the nine protected grounds under the EEA.

Moran explained that there was a statutory exception that permitted direct discrimination on the grounds of age in respect of establishing a retirement age, where certain conditions were met.

“Everything hinges on that line: ‘where certain conditions are met’,” she said.

Section 34(4) of the EEA establishes the statutory derogation providing for the fixing of a retirement age, so long as it is: objectively and reasonably justified by a legitimate aim; and the means of achieving that aim are appropriate and necessary.

Objective justification

Moran cited the 2023 case of Tommy Browne v MSR-FSR Managed Engineering Solutions, where the WRC held that the policy of retirement at 66 years for technicians was objectively justified given the health-and-safety implications. The role involved working with hazardous chemicals and was physically demanding.

“How to handle compulsory retirement is a contentious and emotive topic, and employers are finding it tricky to navigate. It is an issue coming across our desks very regularly, particularly this year,” said Moran.

“One of the main things to realise is that failure to provide an objective justification for the retirement age in line with section 34(4) will prove fatal to successfully defending a discrimination case under the EAA. Paying compensation can be very costly,” noted Moran.

She provided the example of Roper v Radió Telefís Éireann (2019) to show how costly this could be. In this case, the WRC deemed that “intergenerational fairness” was not an objective justification for the retirement age of 65, as it fell “considerably short” as a method of achieving this.

It was also held that the means of achieving the sought-after outcome was not appropriate or necessary. The complainant, Anne Roper, was awarded €100,000 – the equivalent of one year’s salary.

Mallon case

Jennifer Cashman (partner and head of employment at RDJ LLP), urged delegates to look out for the awaited Supreme Court decision on Seamus Mallon v Minister for Justice, Ireland and the Attorney General in the coming months. In this case, the plaintiff is challenging the statutory retirement age of 70 for county sheriffs.

“This will be a seminal case in relation to retirement ages in the workplace. RDJ LLP has a retirement case at the moment that we’re looking to postpone pending the decision. One of the things the Supreme Court is looking at is whether objective justifications for a mandatory retirement age should be assessed in reference to a specific individual or a broader group,” said Cashman.

“I say it should be the broader group, as that’s what European case law has provided for. The Mallon case will give us the answer from the Supreme Court perspective. It’s going to impact on WRC decisions on longer working and retirement cases going forward in both the public and private sectors.”