The complainant was employed by the respondent, who deliberately selected older people, in the role of Driver/Attendant.  This role included driving doctors and occasionally assisting in lifting.  The complainant asserted that he asked at interview if he would retire at 65 and he was told he would not.  His contract made no mention of retirement ages.  It is agreed that until 2008 employees could work beyond 65.  Following a process engaged in with SIPTU the employer reissued the complainant with a contract which now included a retirement age of 65.  The complainant did not sign the new contract but interestingly neither did he object to it in any way.

The complainant makes much of not having been told during induction or his early years with the respondent of the requirement to retire at 65.  However, this was not a requirement at that time.

The respondent agreed that the complainant was compulsorily dismissed by virtue of reaching the age of 65.  The respondent argued objective justification citing Seldon v Clarkson Wright and Jakes, [2012] UKSC 16 to show that an employer may have mixed motives for a compulsory retirement age.  Saunders v CHCIreland (Tribunal Decision DEC-E2011-142) was also cited from a H&S perspective. 

The first issue addressed by the Equality Officer was whether the complainant had a legitimate expectation (at least up to 2008) to work after his 65th birthday and she found that he had and that the issuing of a different contract of employment now containing a retirement age of 65 “was an attempt by the respondent to unilaterally alter Mr O’Mahony’s terms and conditions of employment and he was prudent not to consent to it.”

The Equality Officer concluded that the complainant had established a prima facie case of discrimination and proceeded to consider objective justification based on listed caselaw.  The Seldon case was distinguished as the respondent in this case was not concerned with succession planning or the retention of younger people.  Fuchs and Kohler v Land Hessen was considered where cost considerations cannot in themselves constitute a legitimate aim.  In respect of the H&S argument the respondent failed to present evidence to demonstrate that a cut-off age of 65 was appropriate and necessary to achieve the H&S aim when employees had worked happily beyond 65 prior to 2008. 

In what appears to be an obiter comment the Equality Officer suggests that a fixed term contract or annual health checks may have less assailable although both of those options require objective justification also. 

The complainant was awarded what he would have received as a redundancy payment, €12,000.  The complainant asserted that five other colleagues have made similar claims.

Why is this case of interest

This is a useful reminder to consider objective justification whenever a decision is being taken on the basis of a person’s age.

Another issue that might be worth considering is that amendments to contracts of employment may be considered agreed by acquiescence and in this case the complainant received the new contract detailing a retirement age in 2008 and he took no action.  A different view might be taken if it is accepted that a failure to object or to indicate non-agreement could be interpreted as the complainant having agreed to the new contract thereby removing the right to complain.

The Equality Officer considered the High Court decision in Donnellan v The Minister for Justice but is unclear whether the Labour Court finding in the Hospira case that section 34(4) is an absolute defence to an employer was argued or considered.