This complaint of discriminatory dismissal was brought under the ground of age contrary to Section 6 of the Employment Equality Acts. The complaint concerned an alleged compulsory retirement of a Senior Staff Nurse by the Respondent Nursing Home.

Before the Respondent collapsed and entered liquidation, the complainant sought an award of compensation for the discrimination she had experienced, as well as the loss of over a year's worth of work and redundancy benefits. The appointed Liquidator took the place of the Respondent, who was subject to a High Court Winding-up Order.

The Complainant was given a "Relief Panel Fixed Term Contract" when she first started working for the company in 2014, which contained a Fixed Term Contract clause as well as a retirement condition that stipulated that:

"Retirement age is 65 years.  Employment beyond retirement age is exceptional and only by agreement of the employer.”

As the contract was not extended, the Complainant's job effectively became an indeterminate contract.

When the Complainant reached the age of 65, she met with a manager to discuss the possibility of extending her contract. The Respondent affirmed to the Complainant that she would be hired for another year on a Fixed Term Contract. The Complainant was given a one-year "Post-Retirement Fixed Term Contract of Employment."

Eight months later the Complainant expressed her wish to remain in the company for another year. Her previous manager whom she corresponded with was unavailable and any further dealings were with the director of nursing. He informed her that it would not be possible for her to remain in employment and that she would only have work until the end of October 2019. The Complainant corresponded with the director and board of directors noting that the Respondent had applied to obtain visas for non-EEA national nurses who were due to commence work there shortly. She was concerned that she was to be replaced without cause. On 25th October 2019, the Complainant received a final one-line communication from the director of nursing confirming that her last working day would be Monday 28th October 2019.

The Respondent continued to function for another eleven months before being subjected to insolvency proceedings in the High Court. The Complainant sent the Respondent a request for information via the mandatory questionnaire, Form EE2, explaining the facts behind her forced retirement. She also wanted confirmation that the Respondent had hired younger nurses from outside the EEA to replace her, and she notified the Respondent that she believed she was being discriminated against because of her age. This request was not responded to by the Respondent.

According to the WRC, Section 34(4) of the Employment Equality Act requires an employer to show that setting a retirement age is not only objectively and reasonably justified by a valid goal, but also that retirement at that age is an appropriate and necessary way of accomplishing that goal. The Complainant's compulsory retirement appears to be based solely on her date of birth in this case.

Further, at the time the complainant was provided with the Fixed Term Contract in 2018 upon her reaching the age of 65, no objective justification was given either verbally or in writing and the Fixed Term Contract was silent in terms of satisfying Section 6(3)(c) of the Acts.  When the Complainant requested a further extension in writing in advance of the expiry of her contract, there was no meaningful engagement by the Respondent contrary to the Code of Practice on Longer Working (S.I. 600/2017) and her employment was simply terminated. No rationale was provided to show that her compulsory retirement was objectively and reasonably justified by a legitimate aim and was appropriate and necessary to achieve that aim.

Furthermore, the Complainant had an impeccable work record without any capacity issues and there was ample work available, particularly as the Respondent was hiring agency and non-EEA employees at the time of her termination on the 28th of October 2019.  As a consequence, she was denied another eleven months of employment, statutory redundancy, and an ex-gratia pay-out before the Respondent ceased operation and was subject to a Winding-up Order.

The Complainant established a prima facie case of age discrimination within the dismissal, and the Respondent did not give any evidence to refute it. The Respondent was ordered to pay the Complainant €85,000 in compensation for breaches of the Employment Equality Acts.

This decision serves to highlight a common misconception that employees either with or without a retirement age clause in their contracts may simply be retired at a specified age -  usually 65 - or offered an extension by way of fixed-term contract without engagement with their rights and demonstration that the retirement age is not only objectively and reasonably justified by a legitimate aim but is also an appropriate and necessary means of achieving that aim.
https://www.workplacerelations.ie/en/cases/2021/august/adj-00027325.html