The recent Supreme Court case of Mallon v Minister for Justice [2024] has upheld the legality of mandatory retirement ages, as set out in Section 34(4) of the Employment Equality Act 1988, as amended by the Equality (Miscellaneous Provisions) Act 2015.
Although retirement ages for public servants are generally set out in legislation, the private sector has no statutory retirement age. However, many employers may set their own mandatory retirement ages. These are generally set out as an express or implied term in the employment contract, company policies, or the pension date in an occupational pension scheme. Section 34(4) of the Employment Equality Act 1988, as amended by the Equality (Miscellaneous Provisions) Act 2015, states that mandatory retirement ages can be set if they are (1) objectively and reasonably justified by a legitimate aim and (2) the means of achieving that aim are appropriate and necessary. Examples of legitimate aims are outlined in the Workplace Relations Commission’s (“WRC”) Code of Practice on Longer Working. These include intergenerational fairness, employee motivation due to increased prospect of promotion, health and safety, a balanced age structure in the workplace, personal and professional dignity, and succession planning.
However, the legality of setting mandatory retirement ages has been questioned. In the case of Donnellan v Minister for Justice [2008], it was suggested that where possible, individual assessments should be preferred over mandatory retirement ages. In Mallon v Minister for Justice [2024], Mr Mallon objected to the mandatory retirement age of 70 being set for sheriffs, arguing that it was discriminatory based on age and that there were no objective and reasonable grounds to justify it. However, the Supreme Court held that the retirement age pursued legitimate aims, such as effective succession planning and intergenerational fairness, and was appropriate and necessary, in accordance with Section 34(4) of the Employment Equality Act 1988. Mr Mallon also questioned the appropriateness of setting mandatory retirement ages where individual assessment is possible. The Supreme Court rejected this proposal, stating that it is reasonable for general mandatory retirement rules to be adopted without any need for an individual assessment to be carried out. However, employers must note that they need to be consistent in applying the mandatory retirement age, as inconsistency would make it difficult to establish whether a retirement age is objective and reasonably justified.
The Supreme Court’s decision in Mallon v Minister for Justice [2024] is significant as it clarifies for employers that they are entitled to set mandatory retirement ages. However, employers must note that the WRC’s Code of Practice on Longer Working requires them to inform the employee of their intention to retire them within 6-12 months of the contracted retirement date. Employees may make a request in writing to work longer than their contracted retirement age no less than three months from the intended retirement date.
In considering these requests, employers must continue to have regard to Section 34(4) of the 1988 Act as to whether the retirement is on a legitimate and objective basis. Employers must also consider the objective criteria applicable to the request, the nature of the employee’s contract if they remain, and if the request could be granted on the basis of a more flexible working arrangement.
The above is intended for information only and is not legal advice. If you would like to talk to us about retirement ages in your organisation, please contact us at law@fitzsimonsredmond.ie or 01-6763257.
By Áine Harkin
Trainee Solicitor at Fitzsimons Redmond LLP
