In Tom Ronan v An Garda Síochána (ADJ-00047174), the Complainant brought a complaint to the Workplace Relations Commission (the “WRC”) under the Employment Equality Acts, claiming that he was discriminated against when he was forced to retire at 70. The Adjudicator, Brian Dalton, found that the Complainant was discriminated against on the ground of age, and ordered that the Complainant be re-engaged in his role as a driver with the Respondent organisation.
Facts: The Complainant, a Civil Servant, began employment as a driver with the Department of Justice on 17th January 2020. He was subsequently transferred to An Garda Síochána. Having reached the mandatory retirement age of 70, the Complainant was retired from his role. The Complainant argued that his colleagues in comparable roles continued to work past the age of 70. The Complainant claimed that he was discriminated against on the ground of age, and that he needed to continue working due to his personal circumstances and limited pension income as follows:
The Complainant argued that a distinguishing feature of his case was the financial hardship he would endure post-retirement.
His position was that, as he remained willing and fit to work, and given that others were permitted to continue working beyond 70, his dismissal was neither objectively justified nor proportionate.
The Respondent argued that the matters in this case were comprehensively addressed by the Supreme Court in Mallon v Minister for Justice [2024] IESC 20 which found that the imposition of a mandatory retirement age of 70 for certain civil servants was not contrary to law, including EU law. The Respondent also argued that if a mandatory retirement age is found to be objectively justified, there is no requirement to justify it to an individual employee. The Complainant argued that his circumstances were entirely different from those of the Plaintiff in Mallon. In that case, the Plaintiff was a self-employed solicitor in addition to holding the role of Sherrif. There was no question of him suffering undue hardship as a result of his retirement.
Decision: The Adjudicator referred to the Complainant having identified a comparator – civil servants who are permitted to continue to work beyond the age of 70. However, the Adjudicator noted that the Supreme Court determined in Mallon that the difference in pension retirement ages between certain civil servants (mandatory retirement age of 70 versus no retirement age) was objectively justified.
The Adjudicator turned to consider the matter of undue hardship. He referred to paragraph 10 in the Mallon decision as follows:
“(10) A significant factor in assessing whether a mandatory retirement rule is ‘appropriate and necessary’ will be the financial impact on the persons involved and whether it will result in undue hardship to them. In that context, whether they will, on retirement, be entitled to an adequate pension is an important consideration (Palacios de la Villa, para 73; Rosenbladt, paras 48 – 51; Fuchs & Köhler, paras 66 & 67; Commission v Hungary, 66-70) Whether persons subject to mandatory retirement may continue in their position on a short-term basis (for example on a fixed-term contract or series of contracts) or are free to pursue other employment or whether they are forced to withdraw 22 See also the Opinion of AG Kokott in Commission v Hungary, at para 33: “the Court does not replace the assessment of the Member States but simply examines whether it seems unreasonable.” Page 38 of 68 definitively from the labour market is also relevant (Rosenbladt, para 75; Hörnfeldt, para 38-45)”.
The Adjudicator was satisfied that the Complainant would not have an adequate income arising from his mandatory retirement and that he was “highly likely” to experience financial hardship. This arose particularly as a result of the Complainant’s employment pension benefit being linked to his State contributory pension (his State contributory pension was integrated into the employer pension scheme) and his service of just over 20 years.
The Adjudicator was satisfied that the Complainant had raised a prima facie case of discrimination. He then considered whether or not the Respondent had discharged the burden of justifying the mandatory retirement age.
The Adjudicator found that the measure of a mandatory retirement age is objectively justified subject to it being reasonable and proportionate. He referred to the “the disproportionate impact” that mandatory retirement would have on the Complainant, noting the absence of a “compensating mechanism” such as extension of employment on a fixed term basis, and concluded that the Respondent had not rebutted the prima facie case.The Adjudicator found that the Complainant was discriminated against on the ground of age, noting that “I have determined on the facts of this case that the mandatory retirement age for this Complainant was unreasonable.” (Our emphasis).
The Adjudicator ordered that the Complainant be re-engaged as a driver within four weeks of the date of the decision and that his employment be extended by a further three years from the date of re-engagement. He also ordered that his completed service up to three years be treated as pensionable service and would be calculated for pension purposes as per his original commencement of employment in the service.
Takeaway for Employers: This is a very important decision for employers to note. In this case, the retirement age was objectively justified, but the Complainant was nevertheless successful because the mandatory retirement age was found to be unreasonable for him and the financial hardship that he would endure. This is not something that employers will be used to considering as a matter of course. It will be interesting to see how this line of reasoning is applied in subsequent decisions. It appears that it may be confined to situations where employers do not have a “compensating mechanism” such as an extension of employment on a fixed term basis. Issues surrounding mandatory retirement ages are complex and it is advisable for employers to obtain legal advice before seeking to terminate an employee’s employment on the basis of a mandatory retirement age.
Link- https://www.workplacerelations.ie/en/cases/2024/october/adj-00047174.html
Author – Jenny Wakely
25th November 2024
Anne O’Connell
Solicitors
19-22 Lower Baggot Street
Dublin 2.
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