This is an interesting case on age discrimination in both conditions of employment, in this case, access to training programmes, and through a subsequent mandatory retirement. The complainant, a car mechanic, was approaching the age of 65, which he reached in July 2007. His employer approached him in May 2007, indicating that he would be retiring on his 65th birthday. The complainant disputed this and it was agreed that he should work for at least another year, in order to meet the requirements of a pension scheme in the industry. In the meantime, he was no longer put forward for training programmes, which were considered essential to update skills as a car mechanic, while younger colleagues continued to attend them.

Despite continuing to dispute his mandatory retirement, the complainant was dismissed on his 66th birthday. On the issue of access to training, the Tribunal considered that the complainant had been treated less favourably than younger colleagues and that the employer had failed to rebut the inference of discrimination and therefore that part of the claim succeeded. It can be said that there are connections between the two sets of issues in this case. If the employer had a well-established retirement policy, it is not certain that the outcome would have been the same.

On the issue of dismissal, the Tribunal concluded that, in the absence of a written contract of employment, or a written policy, there was no settled policy in the company on mandatory retirement, nor was there a custom and practice in the industry, particularly since many car mechanics did not reach their retirement age, having previously entered self-employment.

The Tribunal, initially, had to deal with section 34(4) of the Act which provides that, “it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees”. The Tribunal applied the principle, from EU law, of what it described as “purposive interpretation” of the Act, sometimes described as the ‘indirect effect’ of a Directive, in this case, the Framework Employment Equality Directive 2000. It concluded that the Act must be interpreted to require the respondent to justify its reliance on the mandatory retirement age, in accordance with Article 6 of the Directive.

Of course, unlike other equality grounds, direct age discrimination can be justified, basically on the same test as for indirect discrimination, namely, is there a ‘legitimate aim’ and that the setting of a retirement age is an ‘appropriate and necessary’ means of achieving that aim. In the absence of a settled policy in the company, the Tribunal, on the facts of this case, rejected health and safety, competence and job rotation issues as legitimate aims on the part of the company.

In consequence, the complainant was awarded €30,000.

In one of the unsuccessful June Decisions, DEC-E2012-086, Paul Doyle v ESB International Limited, the Tribunal also found a way of reconciling section 34(4) with the justification requirements of the Directive. However, in this case, the Tribunal was “satisfied on the full facts of this case [despite no written policy on mandatory retirement] that the respondent has a well established practice of compulsorily retiring its employees to a pension when they reach the age of 65.” 

In brief, the respondent satisfied the Tribunal that it had in place a range of policies which justified a retirement age of 65. The practical implications of these Decisions are that employers, including small and medium-sized employers, must work out their retirement policies before initiating mandatory retirement and not after the event.

http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-093-Full-Case-Report.html