This case concerned the Complainant’s challenge to her compulsory retirement age of 65, pursuant to s.8 of the Civil Service Regulations Act 1956 (“1956 Act”). The Complainant was a former civil servant holding various roles from 1969 to 1980 and 2000 to 2015. She had a good work record and received formal commendation. As her retirement date approached, she informed the Respondent that she wished to work past 65. However, she was told that her retirement age was fixed. The Complainant argued that the compulsory retirement age was discriminatory not least because her colleagues employed after 2004, who carried out similar duties, were not subject to the 1956 Act and did not have to retire until they reached 70.

Preliminary Matters:

There was some dispute regarding (i) the WRC’s jurisdiction; and (ii) the named Respondent.

Jurisdiction:

The Adjudication Officer (“AO”) noted that age discrimination arose in the case of Boyle, Cotter and Fitzpatrick v. the Minister for Justice, Equality and Law Reform and the Commissioner of an Garda Siochana and the Workplace Relations Commission (“Boyle Case”). When the Boyle Case came before the Supreme Court, it ruled that the WRC did not have the statutory jurisdiction to disapply a piece of legislation enacted by the Oireachtas. However, the Boyle case was subsequently referred to the CJEU which disagreed and ruled that “EU law, in particular the principle of primacy of EU law, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which a national body established by law in order to ensure enforcement of EU law in a particular area lacks jurisdiction to decide to disapply a rule of national law that is contrary to EU law.” Consequently, the AO found that as EU-derived employment equality matters came within the scope of the WRC, it clearly had jurisdiction in this matter, and could disapply a national provision which conflicted with EU law.

Named Respondent:

The AO found that while a broader range of named joined Respondents may have been preferable, the Revenue Commissioners are “from a practical daily point of view, an integral part of the Civil Service establishment” and therefore a correctly named Respondent.

Findings:

The AO noted that under s.34(4) of the Employment Equality Act 1998-2015 (“EEA”), a compulsory retirement age must be “objectively and reasonably justified by a legitimate aim” and “the means of achieving that aim are appropriate and necessary”. The AO considered the UK Supreme Court case of Seldon v. Clarkson Wright & Jakes [2012] IRLR 590 to be analogous to the facts of this case. The AO noted Lady Hale’s finding that “[t]here is a difference between justifying a retirement age and justifying this retirement age.” The AO found that s.8 of the 1956 Act applied to a “rapidly diminishing” cohort insofar as it only applied to those recruited prior to 2004. The AO found that the s.8 compulsory retirement age of 65 could therefore not be objectively justified when so many of the Complainant’s colleagues who carried out similar duties could work until aged 70.

The AO found that following the EU Directive 2000/78/EC and the Boyle Case confirming the primacy of EU Law, s.8 of the 1956 Act must be disapplied as it applies individually to the Complainant. Pursuant to s.82(4) of the EEA, the AO awarded the Complainant €82,000 - the maximum in compensation in light of the CJEU’s dicta in the seminal case of Van Colson v Land Nordrhein-Westfalen Case 14/83 that damages in discrimination cases should be effective, dissuasive and proportionate.

This case is the first instance of the WRC disapplying national law for conflicting with EU law post-Boyle; there have been two cases in which the WRC AO gave the OWTA an EU ‘conformity-reading’ based on the obligation to interpret national law in conformity with the content and objectives of directive and CJEU case law:  A Facilities Coordinator v A Bakery ADJ-00019188, 2020, by AO Kevin Baneham and An Employee v A Security Company ADJ-00028656 by AO Brian Dalton in 2021.
https://www.workplacerelations.ie/en/cases/2021/november/adj-00000031.html