Background:

The Complainant, a student counsellor, had been working 19 hours per week for the Respondent, University of Limerick, on an independent contractor basis since January 2001. The Respondent was the subject of a SCOPE and Revenue review which found the Complainant’s terms and conditions of work with the Respondent meant that as a matter of law, the Complainant had been working as an employee and therefore should have been subject to all terms and conditions which were applicable to employees. One such term was section 8 of the Civil Service Regulation Act 1956, which requires employees such as the Respondent to retire at the age of 65.

The Complainant alleged that the imposition of this retirement age was discriminatory, particularly where such a term was not part of any terms and conditions of employment which he had agreed to at the outset of his contractual relationship with the Respondent. The employment “regularisation” process between the Complainant and the Respondent was in dispute since it commenced in January 2019 and no agreement on the issue of retirement had been reached between the parties. On 12 January 2021 the Complainant was issued a letter from a representative of the Respondent advising the Complainant that his employment would be terminated by reason of mandatory retirement on 9 March 2021.

The Respondent argued that the decision to dismiss him was beyond its control. Once the Complainant had been found to have been an employee, the Respondent was obliged to effect his retirement as soon as possible, as his statutory retirement age had already passed in 2017. The Respondent argued that the Complainant’s complaint was not properly before the WRC because it was made prior to his date of dismissal, and that the Adjudication Officer lacked jurisdiction to disapply a statutory provision.

Outcome:

On the preliminary issue, the Adjudication Officer found that the discrimination claimed could be said to have occurred when notice of the Complainant’s dismissal was issued, and therefore the Complainant’s complaint was within time. The Adjudication Officer also found that pursuant to EU law, Adjudication Officers are empowered to disapply national law where required in order to give effect to European Union law. Using this jurisdiction, and referring to section 34(4) of the Employment Equality Acts 1998 – 2015, the Adjudication Officer asked whether the current retirement age fixed was “objectively and reasonably justified by a legitimate aim and [if] the means of achieving that aim are proportionate and necessary.” Referring to Donnellan v The Minister for Justice & ors [2008] IEHC 467, the Adjudication Officer agreed with McKechnie J that “national measures relating to compulsory retirement ages are not excluded from consideration” under the Employment Equality Acts and related European Directives, and also agreed with McKechnie J that the imposition of a retirement age should be individually assessed.

Because the Respondent did not attempt to provide any evidence regarding its individual assessment of the Complainant’s circumstances, and only attempted to defend its actions by the requirement to apply a mandatory statutory retirement age, the Adjudication Officer found the “Complainant was fully capable of undertaking the work” and that therefore had been the subject of unlawful discrimination. The Respondent was ordered to pay the Complainant €50,000 in compensation of that discrimination as an effective, dissuasive and proportionate amount.

Practical Guidance for Employers:

When considering a mandatory retirement age, it is insufficient to refer only to a contractual term requiring it, or an organisational policy. Any such contractual retirement age should be individually assessed on a case-by-case basis if it is challenged by an employee. This law will be clarified by the Supreme Court in their upcoming decision in Mallon v Minister for Justice & Anor [2023] IESCDET 28.

The full case is here:
https://www.workplacerelations.ie/en/cases/2023/january/adj-00031897.html