Supreme Court. The Supreme Court has this month issued an important Judgement in the case of Seamus...

The Supreme Court has this month issued an important Judgement in the case of Seamus Mallon v The Minister For Justice, Ireland, And The Attorney General relating to the topic of mandatory retirement ages.

Facts:

The case involved a challenge by Mr. Mallon to the mandatory retirement age of sheriffs. Mr. Mallon was a sheriff and a practicing solicitor. Pursuant to section 12(6)(b) of the Court Officers Act 1945 (hereafter the “1945 Act”) the mandatory age of retirement from the office of sheriff is 70.

Mr. Mallon challenged the lawfulness of this legislative provision through judicial review proceedings brought initially to the High Court.

Among other things Mr. Mallon sought a declaration from the Court that Section 12(6) of the 1945 Act was incompatible with European Union law as expressed in Council Directive 2000/78/EC (hereafter the “Employment Equality Directive” or the “Directive”) and that the said section was thus void and of no legal effect.

Mr. Mallon was unsuccessful in his High Court challenge. He was granted leave to appeal to the Supreme Court. The Supreme Court has now issued its Judgement in which it has dismissed Mr. Mallon’s appeal.

Decision:

The Supreme Court concluded that Section 12(6)(b) of the 1945 Act does establish a difference in treatment directly based on age within the relevant articles of the Employment Equality Directive. However, such a difference in treatment may be justified under Article 6(1) of the Directive i.e. if it is objectively and reasonably justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary.

The Supreme Court concluded that in light of relevant jurisprudence from the Court of Justice of the European Union (“CJEU”), the aims identified by the State Respondents in this case as justifying the application of a mandatory retirement age of 70 in the public service, and the application of that retirement age to sheriffs, clearly constitute legitimate aims for the purpose of Article 6(1) of the Directive. The Supreme Court held that standardising the retirement age at 70 across the public service and public agencies and offices, including the office of the sheriff, is one such legitimate objective. The Supreme Court also determined that the imposition of a retirement age of 70 was not disproportionate generally or with particular reference to the position of sheriffs.

One of the conclusions of the Supreme Court is particularly noteworthy in that it clarifies as follows:

“It is not the case that the Directive presumptively requires case by case or role by role assessment or that such individual assessment must be shown to be impractical if a generally applicable retirement age is to be justified. Provided that the aim sought is legitimate and the means of achieving that aim are “appropriate and necessary” (proportionate), a mandatory retirement rule does not offend the prohibition on age discrimination in the Directive, notwithstanding that it does not entail an individual assessment of those subject to such rule.”

This clarification is significant as it represents a move away from the approach previously taken by the High Court in the case of Donnellan v Minister for Justice [2008] IEHC 467. Mr Mallon had sought to rely on Donnellan as authority for a general principle that a blanket mandatory retirement age will not be justifiable where individual assessment is possible.

In the Donnellan case the High Court had stated that “where there are a large number of people involved and it would be impractical to test every person then it may be proportional to use some form of age-proxy”. “Conversely” the Judgement in Donnellan said that “where there are a few people to assess, and such could be done relatively easily it would not be proportionate to use blanket proxies so as to determine personal characteristics”.

The Supreme Court has now clarified that the post-Donnellan CJEU jurisprudence does not support the general proposition above as outlined in Donnellan.

Two other noteworthy points referenced by the Supreme Court in Mallon relate to the actual age a mandatory retirement age is set at and the financial circumstances of the employee.

The Supreme Court commented that the retirement age of 70 in this case was higher and in many cases considerably higher, than the thresholds for mandatory retirement considered without criticism or condemnation by the CJEU.

The Supreme Cour also remarked that the fact that persons appointed to the office of sheriff are free to combine it with continuing practice as a solicitor (or barrister) is a highly significant factor in assessing the proportionality of requiring their retirement at age 70. The Supreme Court noted that for many sheriffs including Mr. Mallon the office of sheriff will not be their sole income and they may also continue in practice after retirement from the office of sheriff.

Takeaway for Employers:

The Supreme Court’s Judgement is helpful for employers in clarifying certain aspects of the law around the highly contentious area of mandatory retirement ages.

In particular it clarifies that contrary to what had previously been understood following Donnellan the law on mandatory retirement age setting does not presumptively requires case by case or role by role assessment or that such individual assessment must be shown to be impractical if a generally applicable retirement age is to be justified.

Nonetheless employers still need to take a careful and considered approach to the question of mandatory retirement ages as a mandatory retirement age will always need to be objectively and reasonably justified by a legitimate aim and the means of achieving that aim need to be appropriate and necessary. Retirement ages are therefore likely to remain fertile ground for dispute for a long time to come.

Author – Laura Killelea