Discrimination based on age and compulsory retirement ages
A mandatory retirement age (ARM) requires an employee to retire at a specified age. An employer may provide for an MRA explicitly in the employee’s employment contract, or it may be implied in the employment relationship by policy or by custom and practice.
The employment equality laws from 1998 to 2021 (the Acts) prohibit discrimination based on a variety of protected grounds, including age. An MRA is considered discriminatory unless:
- a legitimate aim justifies it objectively and reasonably; and
- the means to achieve this goal are appropriate and necessary.
The labor court recently confirmed 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 at 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 asked the Respondent to continue working beyond the MRA, but this was refused. The complainant filed a complaint with the Commission des relations en milieu de travail (CMR) alleging discrimination on the basis of age. He claimed he was fit for the job and knew of another maintenance engineer who had continued to work beyond the MRA. The complainant argued that there was no objective justification or legitimate aim for having the MRA.
The respondent argued that the practice of requiring maintenance mechanics to retire at age 65 had always been in place. Although not expressly stipulated in the complainant’s employment contract, it had been stipulated in the respondent’s employee handbook, the Retirement and Death Benefit Plan, and was applied consistently. . The Respondent admitted that another employee, who had previously worked as a service engineer, had worked beyond the MRA. However, this employee had moved to a clerical position five years before his retirement and was not employed as a service engineer when he reached MRA.
The Respondent argued that the MRA was necessary because of the safety risks associated with the role of a maintenance engineer. The respondent’s policy required that employees retire at age 65 rather than undergo mandatory medical examinations to assess their fitness for duty. Further, the MRA was central to the Respondent’s workforce planning strategy as the Respondent sought to match recruitment with retirement dates.
The labor court noted that although the complainant said during the proceedings that he did not know that the ARM existed, he did not explain why he had requested an extension of his employment beyond the l age 65. The labor court determined that an MRA existed. for service engineers at the age of 65.
The labor court then considered whether there was an objective justification for the MRA. The labor tribunal considered the undisputed evidence regarding the safety-critical nature of the role, the training required to qualify as a service engineer and the investment required by the respondent to train apprentices to the level required by the respondent. The Labor Court admitted that:
“In this case, the legitimate aim is to ensure a continuous flow of suitably qualified service engineers and to ensure that employees are not required to continue working until they are unable to perform their duties. ”
The Labor Court determined that the MRA “was necessary, reasonable, proportionate and, therefore, amounted to an objective justification for this maximum retirement age”.
Mandatory retirement age increasingly difficult to defend
Although this case is good news for employers who have signed MRAs, the trend is against respecting MRAs and it has become increasingly difficult to defend MRAs before the WRC and the labor court in recent years. years. The WRC and the Labor Court often rule in favor of employees challenging an 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 objective (s); Where
- a combination of these and other reasons.
Recently in Barbara Geraghty v. Office of Tax Commissioners, the WRC awarded an allowance of â¬ 82,000 (the maximum possible allowance of 104 weeks’ pay) to a civil servant who was to retire at 65. The official pointed out that many other staff were allowed to continue their employment until the 70 years. The Adjudication Officer (AO) stated that âit is difficult to see from all the evidence that any objective justification is advanced to justify the forced retirement of the complainant [at 65] when so many colleagues were allowed to stay for up to 70 years. ” The AO stated that the Respondent failed to meet the high standard of proof required to justify retirement age.
Another recent case, A senior nurse v A nursing home (In liquidation), saw another maximum compensation awarded to an employee forced to retire at age 65. The AO noted that while the employee’s employment was initially extended by a one-year fixed-term contract (FTC), there was no objective justification for forcing the employee to enter the FTC instead of continuing her employment on her pre-MRA employment contract. Additionally, the employer did not engage in a meaningful way with the employee as required by the Code of Practice on Extended Work when she requested to work beyond the FTC’s expiration. There was also no objective justification for the employee’s termination when the FTC expired. It is important to note from this case that contracts extending employment beyond the MRA, as well as the MRA themselves, may fall under the law unless they are objectively and reasonably justified by a legitimate aim and that the means to achieve this aim are necessary and appropriate.
- 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 (En liquidation) ADJ-00027325 (available here)