This case concerns an employee in his 70s who had worked for the employer since 1989 and was eventually retired by the employer in September 2009, a year after a retirement policy was introduced. It appeared that employees regularly worked on past the age of 65, with the exception of managers who had a contractual retirement age of 65. In contrast, the complainant never had a written contract of employment. The Tribunal accepted the complainant’s evidence that he only became aware of the policy in April 2009 and that he had not been consulted on it or, in any way, consented to the change.

Having decided that the complainant had been discriminated against compared to younger employees who were not being required to retire, the Tribunal turned to the recurring issue of the application of Section 34(4) of the Acts, which provides an exemption from the application of the Acts to employers who fix retirement ages for employees. It applied Donegal County Council v Porter (High Court unreported (Flood J) 23 March 1993), on the basis that “where the respondents were employed on the basis of a legitimate expectation and where nothing has occurred in the intervening years which could be said to alter that state of affairs by consent, an attempt to force them into retirement by dismissal at a certain age was an attempt to unilaterally alter their contractual situation and would be in breach of contract unless it can be justified in some other lawful way.” (The Tribunal also referred to the Employment Appeals Tribunal case of McIntyre v Leitrim County Council [2006] Case No. UD926/2004.)

Finally, on the relationship between section 34(4) and the Framework Directive 2000, the Tribunal quoted Donnellan v Minister for Justice ([2008] IEHC 467), "Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate." In this case, the employer gave evidence that it had applied a retirement policy introduced by its parent company across a range of EU and EEA States. The Tribunal took the view that it had not presented any arguments that the discrimination against the complainant served any legitimate aim or purpose and so concluded that section 34(4) did not apply. He was awarded €15,000 in respect of the discrimination.

This case goes further than cases such as O'Neill v Fairview Motors Ltd (DEC-E2012-093), reviewed in the July and August successful cases, in that the employer did attempt to introduce a retirement policy but did so without consultation with, let alone, consent from the affected employees. Nor is it sufficient to submit that the policy was applied across a multinational group of companies without specific justification, whether at the multinational or national level.

http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-119-Full-Case-Report.html