In Thomas Doolin v Eir Business Eircom Limited ADJ-00045261 the Complainant, Mr Doolin, brought...

In Thomas Doolin v Eir Business Eircom Limited ADJ-00045261 the Complainant, Mr Doolin, brought a complaint to the Workplace Relations Commission (the “WRC”) under the Employment Equality Acts claiming that he was discriminated against on the grounds of age. The Adjudicator, Breiffni O’Neill, found that the Complainant established a prima facie case of discrimination when he was dismissed by the Respondent on grounds of age which was not rebutted by the Respondent.

Facts: The Complainant was employed by the Respondent as a Desktop Support Agent from September 2019 until his 65th birthday on 1st July 2023 when he was mandatorily retired by the Respondent. The Complainant claimed that this constituted discrimination on the grounds of age. The Complainant was informed by the Respondent in January 2023 of its intention to retire him on 1st July 2023. On 8th February 2023, the Complainant made a formal request to work past the age of 65. A meeting took place on 23rd February with the Complainant, his line manager, and a HR Generalist. Following this, the Complainant was issued with a letter setting out the decision not to extend his retirement age. The letter stated that this decision was not based on any performance issues. The Complainant requested an appeal which took place on 5th April 2023 with Mr James Mangan, HR Director. Mr Mangan issued a decision on 14th April refusing the Complainant’s appeal and referred to the Respondent’s reasons for maintaining a universal retirement age of 65.

The Complainant submitted to the WRC that this was unfair because he enjoyed his role and had always performed very well. The Respondent submitted that Mr Mangan considered the points raised by the Complainant at the appeal meeting, but the final decision referred to the legitimate reasons for maintaining a retirement age of 65 in line with the Complainant’s contract of employment.

Decision: The Adjudicator noted that it was accepted by both parties that there was a mandatory retirement age. The Adjudicator was required to consider whether or not there was an objective justification that was reasonably justified by a legitimate aim for having a mandatory retirement age of 65. The Adjudicator referred to Mr Mangan’s evidence on behalf of the Respondent in relation to intergenerational fairness and maintaining age balance in the workplace. In the context of this case, the Adjudicator considered that as the Complainant occupied a junior and “non-critical” role, he would not have a negative impact on succession planning nor would he impede the career progression of any of his colleagues.

Furthermore, in relation to the reference on behalf of the Respondent to health and safety considerations, the Adjudicator held that the health and safety considerations that apply to the majority of the Respondent’s employees with field-based roles were irrelevant to the Complainant, as his role was exclusively office and desk based.

The Adjudicator found that the Respondent’s decision to refuse to allow the Complainant to work beyond its mandatory retirement age was not objectively justified on any of the grounds set out in the Respondent’s retirement policy. He also found that it conflicted with the suggestion of McKechnie J. in Donellan v Minister for Justice, Equality and Law Reform & Ors [2008] IEHC 467that the imposition of a mandatory retirement age should be individually assessed on a case-by-case basis. The Adjudicator also referred to the Code of Practice on Longer Working which suggests that employers should consider the “changing statutory and legal framework in regard to retirement and pension entitlements”.

The Adjudicator went on the find that the decision of the Respondent to refuse the allow the Complainant to work past the age of 65 was not objectively justified on any of the grounds set out in the Respondent’s retirement policy given the nature of his role. The Adjudicator ordered that the Complainant be reinstated in his role with effect from 1st July 2023, the date his employment was terminated. The Complainant did not seek an award of compensation.

Takeaway for Employers: While employers in Ireland are permitted to set a mandatory retirement age in their contracts of employment, employers will be required to demonstrate that the mandatory retirement of an employee was objectively justified by a legitimate aim, such as intergenerational fairness in the workplace. It is important to ensure that mandatory retirement clauses/policies are carefully drafted. Moreover, employers must ensure that they consider any requests from employees to work beyond the mandatory retirement age on a case-by-case basis, paying particular attention to the type of role involved. Employers should also have regard to the Code of Practice on Longer Working when considering their retirement policies and requests for longer working.

Link -  https://www.workplacerelations.ie/en/cases/2023/november/adj-00045261.html

Authors – Jane Holian, Jenny Wakely, Anne O’Connell