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Latest in Employment Law>Case Law>Elizabeth Sweeney v Aer Lingus Teo [2012]
Elizabeth Sweeney v Aer Lingus Teo [2012]
Published on: 11/01/2013
Issues Covered: Contracts of Employment Pay
Article Authors The main content of this article was provided by the following authors.
Deirdre Crowley
Deirdre Crowley
Background

In this case, an Aer Lingus employee was awarded €5,000 by the Equality Tribunal, which concluded that management had failed to establish that her compulsory retirement at 65 years “served a legitimate aim, or purpose”.

In this case, Aer Lingus did not specify a specific retirement age in Ms. Sweeney’s contract of employment. Aer Lingus referred in their Defence to the terms of the occupational pension scheme and referred specifically to pension benefits which accrued at the age of 65 years. The claimant submitted that at no stage during her employment was it clearly communicated to her that she would be subject to mandatory retirement. 

Aer Lingus made the point that the absence of an express reference to a retirement date does not automatically mean that a “normal” retirement date does not arise. Aer Lingus relied on section 34(4) of the Employment Equality Acts 1998-2011 in their Defence.

Aer Lingus further pointed out that only one person in the preceding ten years remained in employment after normal retirement age. The person in question, a senior technical specialist, had been allowed to remain for the orderly hand over of duties and knowledge to a successor. 

Two much talked about authorities were cited by the claimant in this case.

* “The Palacious de la Villa” judgment (C/411/05), in which the Court of Justice of the European Union ruled that national legislation setting a retirement age was “objectively and reasonably justified by a legitimate aim relating to employment policy and the labour market”.

* The Donnellan v Minister for Justice (2008) IEHC 467, case where the High Court ruled that a compulsory retirement age for assistant Garda Commissioners was “objectively justified by reference to a legitimate aim and the means used were appropriate and reasonable”.

In a detailed decision, the Equality Officer noted amongst other things that “it is well established in both community and Irish law that pension entitlement does not necessitate retirement.”

Having considered all the facts, the Equality Officer concluded that the claimant had established facts from which discrimination could be inferred. The Officer specifically said that in the absence of justification for the discrimination, the claimant was entitled to succeed in her action.

In assessing damages, the Tribunal had due regard to the fact that the claimant has been in receipt of a full pension from the date of her retirement. 

Key take home points:

* This area is receiving significant attention judicially and from Tribunals.

* Employers are advised to review their retirement provisions both contractually and in their retirement policies

* Employers are advised to be aware of the provisions of the Social Welfare Act 2011, which provide for retirement at 66 from 2014, 67 from 2021 and 68 from 2024

* Employment law on the issue of retirement has not changed, but the potential for litigation increases due to the future existence of a three year gap between a contractual age of retirement at 65 years and the date of the taking effect of the state pension at 68 years

* There is nothing unlawful about retiring employees at 65 years as long as an employer’s policy is objectively justified by demonstrating a legitimate aim or purpose and ensuring that the retirement policy goes no further than is necessary and is proportionate to the needs of the organisation

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 11/01/2013
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