What is the current law in relation to mandatory retirement? 

An employer can set a contractual mandatory retirement age (MRA) in accordance with Irish employment equality legislation, provided it can be objectively justified.

In the 2024 case of Seamus Mallon v the Minister for Justice, Ireland and the Attorney General [2024] IESC 2024 (Mallon), the Supreme Court upheld that general retirement ages are permissible, provided they pursue a legitimate aim, and the means of achieving that aim are appropriate and necessary (i.e. proportionate). The Supreme Court held no individual assessment was generally required when setting an MRA, and mandatory limits can be set in relation to defined groups based on general probabilities of age, health and competence.

How has the WRC been approaching mandatory retirement, following the decision in Mallon?

Three recent decisions in the WRC have considered complaints of age discrimination following the imposition by an employer of an MRA, having regard to the Mallon decision:

In An Employee v An Employer (ADJ-00058524), the complainant, a registered psychiatric nurse, had sought a recommendation from the WRC that she be allowed to work past the respondent’s contractual retirement age of 66. The Adjudication Officer (AO), noting the role of a psychiatric nurse is demanding both physically and mentally and involves a number of recognised hazards, stated the existence of a mandatory retirement age was there to protect the staff, to provide dignity to them at the end of their working life and for health and safety reasons due to the demands of the role. 

The AO expressly referred to the Mallon decision, noting mandatory retirement ages are legal in Ireland, provided they can be objectively justified. The AO observed that an employer having a clearly established contractual retirement age supported the preservation of both personal and professional dignity and helped to avoid sensitive issues related to an individual’s health or capacity, which may naturally decline with age. The AO held the respondent’s objective justifications for its retirement policy, namely the physical and mental demands of the role, workforce and succession planning and intergenerational fairness, were valid, and the respondent was entitled to require staff to retire at the age of 66.  The complaint was taken under the Industrial Relations Act 1969, and the AO did recommend that the respondent pay a €1,000 sum as a good will gesture for the upset caused by the respondent’s failure to acknowledge the complainant’s years of service. 

Similarly, in Patrick Donnellan v Eircom Limited (ADJ-00051860), a former field technician was found not to have been discriminated against on grounds of age when his request to work past the age of 65 was refused. The respondent applied an MRA age of 65 across the organisation (as outlined in its retirement policy), the rationale for which included intergenerational fairness, succession planning, health and safety and the need to maintain an age-balanced workforce. Each of these four aims had been noted to be legitimate by the Supreme Court in the Mallon decision. 

The AO, again citing Mallon, in which the Supreme Court had stated that the employer was better placed than the Court to assess what is necessary or proportionate for the effective operation of its business, stated the WRC’s role was limited to considering whether the respondent’s judgement appeared to be unreasonable. On the basis of the respondent’s evidence, the AO held the respondent had acted reasonably in accordance with its retirement policy, and the MRA was objectively and reasonably justified by legitimate aims. The AO further held that the complainant had a contractual entitlement to a defined benefit pension, and therefore had the opportunity to adequately plan for his retirement with security and certainty. In the circumstances, the AO held the MRA was appropriate and necessary having regard to this pension provision. The respondent had therefore acted in compliance with the Employment Equality Acts, and the complainant had not been discriminated on grounds of age.

Additionally, in Denise Murphy v Royal College of Surgeons in Ireland (ADJ-00046831), a secretary claimed she had been discriminated against on grounds of her age when she was required to retire in line with the respondent’s retirement age policy. The complainant’s contract stipulated that her normal retirement age would be her 65th birthday, and the respondent had a formal retirement policy which outlined the justifications for imposing a retirement age (and the complainant confirmed she was aware of this policy). 

The complainant’s employment had been extended by way of a one-year fixed term contract, on an exceptional basis and in line with the respondent’s policy. When this fixed term contract was coming to an end, the complainant felt she was being “forced to retire”, and reached out to the respondent, who confirmed there would be no further extension, and the fixed term contract provided previously had been in response to an exceptional situation which was no longer the case.  The AO was satisfied that the one-year extension had the fixed purpose of ensuring the complainant’s replacement would be found, and to ensure the ongoing smooth running of the department, and the complainant’s termination was not related to any personal characteristic of the complainant. Moreover, the AO was satisfied the respondent had clearly set out a reasonable and objective justification for having a retirement age, in effect, to allow for competition, diversity and promotion. 

Following the Mallon decision, the AO found the respondent had not acted in an unlawful or discriminatory way by operating an MRA policy. It was therefore determined the complainant had not established that she was discriminated against on grounds of her age when her employment came to an end, nor had she been dismissed for discriminatory reasons. 

Scanning the Horizon: What does the Contractual Retirement Ages Bill 2025 mean for employers?

The Employment (Contractual Retirement Ages) Bill 2025 (the Bill) introduces measures which allow, but do not compel, employees to stay in employment until they reach the age of 66 (the State Pension Age), irrespective of whether an employer has a lower contractual MRA in place. The Bill is not yet in force and is making its way through the Oireachtas legislative process:

• The Bill provides a right to in-scope employees to notify their employers in writing if they do not consent to an MRA provided in their contract of employment. Employees can inform their employer they wish to remain in work until they reach the State Pension Age. 
  
• Employers will not be able to enforce an MRA unless they have provided a reasoned written reply outlining the justification for the MRA, within one month of the employee’s notification.
  
• In line with the principles outlined in the Mallon decision, an employer must be able to show that the earlier retirement age is objectively and reasonably justified by a legitimate aim and that the means of achieving it are appropriate and necessary.
  
• The key difference to the position which has been followed by the WRC since Mallon, is that the Bill introduces a requirement to justify an MRA in respect of the individual employee.

To note, where an employer has an existing MRA of 66 or above, the provisions of the Bill will not apply and there will be no requirement to receive employee notifications and provide written reasoned replies.

More details in respect of the Bill can be found in the separate briefing here.

What are the key takeaways for employers?

• Recent WRC decisions confirm that, following the Mallon decision, employers can lawfully set and enforce an MRA provided it can be objectively justified by legitimate aims.
  
• Employers must consider and be able to show on what basis any existing MRA (a) can be objectively and reasonably justified by a legitimate aim; and (b) that the methods employed to achieve this aim are proportionate and necessary.
  
• Once the Bill is introduced, employers shall need to be aware that there is an increased risk in enforcing mandatory retirement below the age of 66. Some employers may consider raising existing MRAs to match the State Pension Age.
  
• Employers shall also need to consider what updates may be required to existing contracts, and policies on how to handle requests to work beyond an MRA. HR and management staff should be made aware of the changes proposed in the Bill, and specific training should be provided, once the Bill has been finalised and enacted.