Retirement and Age Discrimination
Recent decisions of the Workplace Relations Commission (WRC) and the Labour Court have highlighted the issue of potential age discrimination in the context of retirement from employment.
Under the Employment Equality Acts 1998-2015, discrimination is taken to occur where a person is treated less favourably than another, whether directly or indirectly, on the basis that they are of a different age. The prohibition of discrimination on the age ground is subject to two exemptions under the legislation: first, employers can fix ages of retirement and secondly, it is permissible to offer a fixed term contract to a person over retirement age. However, in both instances the actions of the employer must be objectively and reasonably justified by a legitimate aim, and the means of achieving that aim must be appropriate and necessary.
In ADJ-00027325: A Senior Staff Nurse v. A Nursing Home (in Liquidation), the Complainant was employed as a senior staff nurse by the Respondent nursing home. The company policy was for employees to retire at the age of 65. On reaching retirement age, the Complainant was granted a further one-year contract and despite her requests to continue working after the expiry of this fixed term, she was subsequently informed of the date of her final working day. The Adjudication Officer found that the Complainant had made out a prima facie case of discrimination on the grounds of age, accepting her evidence that there was ample work available and that she was capable of undertaking the work required. No rationale had been provided by the employer at any time to justify its actions and furthermore, there had been no meaningful engagement with the employee contrary to the Code of Practice on Longer Working. The Complainant was awarded the maximum applicable award of two years’ remuneration.
In Pat O’Donnell & Company v. Denis O’Keeffe, the Complainant was a service engineer whose employment was ceased on reaching his 65th birthday. In contrast to the case considered above, the employer put forward extensive evidence in support of its retirement policy concerning, for example, the safety critical nature of the role and the extent of planning involved in training engineers to the standard required. The Labour Court, in rejecting the Complainant’s appeal, was satisfied that the employer’s mandatory retirement age was proportionate to the legitimate aim of ensuring a through flow of appropriately qualified service engineers and ensuring employees were not required to continue working until they were unable to perform their duties.
The issues considered in these decisions are likely to become increasingly significant in the coming years, as the Government considers proposals to increase the State pension age. It is of note that both of these hearings were held in public, as required by the judgment of the Supreme Court in Zalewski v. An Adjudication Officer and Others  IESC 24; however, in the first case discussed here, the Adjudication Officer exercised her discretion to anonymise the decision, owing to the sensitive nature of the subject matter. The changes to the WRC procedures required by the Supreme Court decision have since been placed on a legislative footing with the introduction of The Workplace Relations (Miscellaneous) Provisions Act 2021, and the WRC has published guidance on its website.