Complainant

Respondent

Parties

Tom  Ronan

An Garda Siochana

Representatives

 Healy Law Dublin LLP / John M Lynch BL

Chief State Solicitor/Niall Fahy BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00058010-001

01/08/2023

Mr. Ronan commenced employment with the Department of Justice on the 17th of January 2020 as a driver. He is a Civil Servant.

He argues that other colleagues who also work as drivers continue to work in that role post age 70. He contends that he is being discriminated against on ground of age. His means are limited. He has the following pension income:

·       Contributory State Weekly Gross Pension of €277.30 which will rise to €289.00 post the budget

·       Annual Gross Defined Benefit Pension of €4160 or €88.65 per week.

·       Annual another Gross Company Pension of €1000 or €19.23 per week

His annual gross income is €20,600. Arising from his personal circumstances and a modest pension income the Complainant stated that he must work.

He was subsequently transferred to An Garda Siochana and his service as a Civil Servant for pension purposes continued.

There are 3 different Defined Benefit Schemes relevant to this case that apply to Civil Servants and prescribe when a Civil Servant retires:

1.      Pre 2004 entrants have a mandatory pension age of 70 and their pension contribution is integrated into the single contributory state pension.

2.      Post 2004 – 2012 entrants have no mandatory pension age and depending on the class of PRSI contributions the contributory state pension is not integrated.

3.      Post 2013 a mandatory pension age of 70 and a career averaging of salary applies when calculating pension entitlements.

It is argued by the Respondent that the matters before this tribunal have been comprehensively addressed in Mallon v Minister for Justice [2024] IESC 20.

It is argued once objectively justified there is no requirement to justify a mandatory retirement age to an individual employee. A retirement age of 70 is not disproportionate and is considerably higher than the current contributory state pensionable age of 66.

The cohort of Civil Servants who have no mandatory retirement age is based on objective grounds and to impose a mandatory age could compete with other accrued rights for this group and is not a valid comparator in this case.

The Complainant stated that a distinguishing feature of this case is financial hardship. While the Complainant is in receipt of a contributory state pension and a very modest defined benefit pension, his personal circumstances demand that he continues to work.

Article 6(1) of the Framework Directive provides for exceptions to the rule against differences of treatment on grounds of age, in circumstances where they are merited and if there is a legitimate aim:

“Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.”

 Recital 14 of the Directive states:

“This Directive shall be without prejudice to national provisions laying down retirement ages.”

Section 34(4) of the Employment Equality Act as amended implements Article 6 of the Framework Directive:

(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if—

(a) it is objectively and reasonably justified by a legitimate aim, and

(b) the means of achieving that aim are appropriate and necessary.

The dismissal of the applicant is not objectively justifiable in circumstances where there are work colleagues older than him who continue to work for the respondent in the same role. The test for objective justification is as set out in Donnellan v The Minister for Justice & ors [2008] IEHC 467. In that case McKechnie J held:

“National measures relating to compulsory retirement ages, are not excluded from consideration under [the Directive]. Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e., they should be proportionate”.

It is the applicant’s contention that, as he was still willing and fit to work, and that others are permitted to work beyond the age he was dismissed, his dismissal was neither objectively justified nor proportionate

The respondent has cited Mallon v Minister for Justice [2022] IEHC 546 in their submissions. The applicant submits that his circumstances are entirely different to those that pertained in Mallon. In that case the Complainant was a self-employed Solicitor. There was no reference to undue hardship in that case. The role of Sheriff was a highly desirous and well-paid position, where any number of candidates may wish to gain this job. It is submitted that these factors make it incomparable to the role of a civilian driver. This would mean that the decision in Mallon needs to be read along with the concept of a legitimate aim or purpose as set out in Donnellan and that it is proportionate.

Summarising its conclusions that the mandatory retirement age was not contrary to law, including EU law, the Supreme Court in Mallon held as follows: -

“The imposition of a retirement age of 70 is not disproportionate, generally or with particular reference to the position of sheriffs. Member States enjoy “broad discretion” in this area and it is for the competent authorities to “find the right balance between the interests involved.” A retirement age of 70 is higher, and in many cases considerably higher, than the thresholds for mandatory retirement considered without criticism or condemnation by the CJEU. It is significantly higher than the pensionable age for the purposes of the State pension. The appropriate retirement age in the public service generally has been the subject of recent public engagement and consideration by the Oireachtas, resulting in the enactment of the 2018 Act which provides for a mandatory retirement of 70. While the State could have elected to fix the mandatory retirement age at a level higher or lower than 70 (or could have decided not to have any general retirement age), provided that the prescribed retirement age appears reasonably designed to achieve the objectives being pursued, the requirements of Article 6(1) will be satisfied”

The recent Supreme Court decision does not change the analysis offered in the written legal submissions delivered on behalf of the Respondent initially. Indeed, the position set out in the previous submissions – that it is legitimate to impose a blanket mandatory retirement age across all workers generally save those whose accrued rights may not be disturbed – is affirmed by the Supreme Court.

The overall pension entitlement of the Complainant is reasonable especially when compared to many other pensioners. While his pension income maybe modest he is in receipt of the contributory state pension, he wa relatively smaller defined benefit pension that is indexed and another pension from a previous employer. And he worked several years post age 66 when he was also in receipt of the contributory old age pension. Many other pensioners have far less and his overall income in retirement is adequate.

Pension Entitlement:

Mr. Ronan based on his defined benefit scheme and the date of joining the service had a mandatory retirement age of 70 and was retired on the 27th of March 2023.

He argues that other colleagues who also work as drivers continue to work in that role post age 70. He contends that he is being discriminated against on ground of age. His means are limited. He has the following pension income:

·       Contributory State Weekly Pension of €277.30 which will rise to €289.00 post the budget

·       Annual Defined Benefit Pension of €4160 or €88.65 per week.

·       Annual Company Pension of €1000 or €19.23 per week

His annual gross income is €20,600. Arising from his personal circumstances and a modest pension income the Complainant stated that he must work.

Comparator:

I note that the Court in Mallon stated at paragraph 96:

“As for the cohorts of public servants recruited between 2004 and 2012 who were not subject to any mandatory retirement age, I agree with the Judge that there was a proper basis for treating them differently. In the first place, the State was entitled to change its policy in 2012 (when the Oireachtas enacted the 2012 Act, reimposing a mandatory retirement age, fixed at 70 rather than 65, for new entrants into the public service): Palacios de la Villa at para 70. Secondly, the State was entitled to take the view that it would not be appropriate to apply that new regime retrospectively to public servants recruited between 2004 and 2012. To have done so would have raised potential issues both under Irish law and by reference to the Directive”

In this case the Complainant grounds his claim when compared to a colleague who continues to work as a driver having reached the age of 70. The Supreme Court determined that this difference in pension retirement ages (mandatory at 70 v no retirement age) was objectively justified.

Mandatory Retirement Age:

It also must be noted that the State has wide latitude in determining retirement ages for different categories and classes of employees as determined as paragraph 89 of the judgement:

“No doubt, the State could have elected to fix the mandatory retirement age at a level higher or lower than age 70 (or elected not to have any general retirement age). There is no “right” retirement age and Member States may reasonably differ as to the age (if any) that should apply (and may alter that age in response to changing circumstances). Provided that the prescribed age appears reasonably designed to achieve the objectives being pursued, the requirements of Article 6(1) will be satisfied. It is clear from the CJEU jurisprudence that the State enjoys a “broad discretion” in this context and its judgment as to how best to balance broad and competing socio-economic considerations – including but by no means limited to the rights and interests of persons required to retire, potentially against their will – must accordingly be given very significant weight.”:

And Article 6 (1) states:

Article 6

Justification of differences of treatment on grounds of age

1. Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

Such differences of treatment may include, among others:

(a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

(b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;

(c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

Undue Hardship:

I also note at paragraph 10 where the Court determined:

(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 Complainant is entitled to a contributory state pension of €277.30 gross

A gross Civil Service Pension of €88.60 per week.

A gross annual pension benefit of €1000 from a previous employment.

The median nominal disposable household income as cited in the CSO Household Income report 7th of March 2024 is €55,149 for the calendar year 2022.

The OECD classes people as poor where there equivalised disposable household income is less than 50% of the median in each country.

The parties accept that the Complainant has a gross pension entitlement of the order of €20,600 per annum inclusive of the contributory state pension.

I note from the following report POVERTY, INCOME INEQUALITY AND LIVING STANDARDS IN IRELAND: FOURTH ANNUAL REPORT by Barra Roantree, Bertrand Maître and Helen Russell; Barra Roantree, a jointly published report by Economic and Social Research Institute and Community Foundation Ireland, dated September 2024:

 SEE 

FIGURE 2.1 AVERAGE REAL EQUIVALISED DISPOSABLE INCOME: 1987–2023 

 AND 

FIGURE 2.5 AVERAGE REAL EQUIVALISED DISPOSABLE INCOME, BY AGE: 1987–2023 

I also note that there has been a remarkable change in the fortunes of those aged 65 and above as detailed in this report:

As highlighted in previous ESRI research (Doolan et al., 2022; Doorley et al., 2023), the eventual withdrawal of these payments will reduce household incomes, particularly at the bottom of the distribution where households are more reliant on social welfare payments. As a result, while lower inflation and higher earnings growth should contribute towards improved living standards for households with someone in paid work, real-terms cuts to social welfare payments – and to some tax credits and bands – will offset this and could leave household incomes continuing to stagnate lower down the income distribution.

Another striking feature of the latest data is the difference in income growth experienced by different age groups. This is shown by Figure 2.5, which plots average real equivalised disposable income by age both before housing costs (BHC, solid lines) and after housing costs (AHC, dashed lines) since 2007 when data is available. While average incomes declined in real terms by around 3 per cent for those aged 0–17 and 18–64 on both an AHC and BHC basis, they grew by 3 per cent for those aged 65+.[1] Indeed, Figure 2.5 shows that on an

 SEE 

TABLE 2.1            COMPOSITION OF AVERAGE REAL EQUIVALISED DISPOSABLE INCOME, BY

This is a remarkable turnaround from the position in 2007 when the average AHC income for those aged 65+ was 25 per cent lower than that of those aged 18–64 and 14 per cent lower than that of those aged 0–17. The change in part reflects sustained increases to the State Pension over the 2000s and through the recession, when other social welfare payments were cut in nominal terms (Callan et al., 2010; 2018). However, Table 2.1 shows that the more recent growth in average real disposable income for those aged 65+ is due to a rise in market income, in particular income from employment, self-employment and the rental of property or land. 

As in the UK (Cribb et al., 2024), the rise in average employment income for those aged 65+ appears in part to be driven by an increase in the share of such individuals in paid work, up from 11.7 per cent in 2022 to 13.4 per cent in 2023.11 However, there has also been a rise in the share of those aged 65+ with a spouse in paid work, up from 15.1 to 17.6 per cent over the same period. In addition, while the average number of hours per week worked by those aged 65+ in paid work has remained flat, their real annual earnings have increased. 

Arguably the Complainant when working would also be in position where his nett disposable income would be more similar to average disposable incomes. However, based on his current pension income that is not the case.

A distinguishing feature of the Complainant’s Employment Pension Benefit is that it is linked to his state contributory pension.

This means for him and other class of persons who are on a relatively lower salary, they will effectively draw down, as a percentage of their final salary, a lower amount when compared to higher paid classes. If the state pension is €15,000 a year and you receive €100,000 salary a year based on full service and an entitlement to half salary; the pension benefit will be €35,000 in addition to the state contributory pension. In contrast if the final salary is €45,000 less the state contributory pension of €15,000 then the pension benefit based on half of the final salary will be €7500 allowing for contributory pension integration. Also, in this case the service of just over 20 years will also amplify the effect of the state pension integration and what he receives from his employer. A contributory state pension is accrued over 40 years.

The specific calculation of this Complainant’s pension has not been provided, other that it is an integrated pension and his pension from his employer is modest allowing for a start date of 17th of January 2000:

Dear Sirs,

 We refer you to the above matter and enclose herewith letter from Financial Shared Services - Pensions Admlnistration Section dated the 3d of May 2023, showing Mr. Ronan's annual pension. Mr. Ronan received the sum of €83.61 per fortnight. Yours faithfully Healy Law LL

 The Government relevant pension site details how integration may apply as follows:

Employees who pay Class A PRSI under the social insurance system operated by the Department of Social Protection may be entitled to a range of social insurance related payments from that department by virtue of their PRSI contributions. One such payment is the State Pension (Contributory) (‘SPC’), which is payable to eligible persons on reaching age 66.

A significant number of occupational pension schemes (in both the private and public sectors) take account of the SPC when providing a pension under the occupational pension scheme. This is known as ‘integration’ and is sometimes referred to as 'co-ordination'.

An integrated, or co-ordinated, pension scheme looks at the total pension entitlements available to employees on retirement, including the SPC and their occupational pension benefit. One reason for this is that both employers and employees make PRSI contributions which, in turn, entitle scheme members to certain social insurance benefits, including the SPC.

Occupational public service pension schemes use integration in order to account for an employee’s entitlement to the SPC, to determine:

·       the amount of occupational pension payable from their pension scheme, such that the combined pension from both sources (occupational pension and SPC) is at the desired level under the scheme's design; and

·       the level of contributions payable by the employee towards the cost of their occupational pension, reflecting the offset of the SPC from their occupational pension benefit.

This is normally achieved by a salary offset in respect of the SPC in the calculation of employee pension contributions and, in the calculation of a pension benefit under an integrated public service pension scheme, the SPC is usually accounted for through an offset built into the rate of pension accrual under the scheme.

In calculating pension benefits under an integrated public service pension scheme, it is assumed that the public servant concerned is entitled to social insurance benefits by virtue of their PRSI classification and is eligible for the maximum rate of those benefits. There are, however, circumstances where a person will not qualify for the SPC or qualifies at a rate that is less than the maximum rate payable.

In the case of members of an integrated pre-existing public service pension scheme who retire and who do not qualify for the SPC or qualify for a lower rate of SPC than the maximum payable, they may be entitled to an occupational supplementary pension, subject to certain conditions being met.

I note at paragraph 70 in Mallon:

70. McKechnie J had discussed the issue of individual assessment earlier in his judgment, expressing the view that “[w]here 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”, he went on, “where there are 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” (para 104). As support for that approach, McKechnie J referred to Ó Cinnéide, Age Discrimination and European Law (2005), at pages 37-38.

 The state is pursuing a legitimate objective in having a mandatory retirement age of 70 and as stated at paragraph 74:

 74. Thirdly, and most significantly, the post-Donnellan CJEU jurisprudence does not support any general proposition in the terms articulated in paragraph 104 of Donnellan. On the contrary, as is evident from the discussion above, the avoidance of individual capacity assessment – both because of the scope for disputes such assessment necessarily involves and because of its potential impact on the dignity of employees – has been recognised as a legitimate aim capable of justifying a general retirement age. The recognition in the CJEU jurisprudence that standardisation of retirement ages across the public service and the emphasis on coherence and consistency are also at odds with any suggestion that it is only where it “would be impractical to test every Page 45 of 68 person then it may be proportional to use some form of age proxy.” It may be that the law might have developed in that direction (as Ó Cinnéide appears to have considered in 2005) but it has not in fact done so.

It would appear based on the facts of this case a factor that must be considered arising from the relatively low occupational pension is financial hardship and if the measure of mandatory retirement is proportionate having regard to that modest occupational pension.

I note that in Palacios de la Villa, para 73 a factor in considering hardship is:

Furthermore, the measure cannot be regarded as unduly prejudicing the legitimate claims of workers subject to compulsory retirement because they have reached the age-limit provided for; the relevant legislation is not based only on a specific age, but also takes account of the fact that the persons concerned are entitled to financial compensation by way of a retirement pension at the end of their working life, such as that provided for by the national legislation at issue in the main proceedings, the level of which cannot be regarded as unreasonable.

The Complainant is entitled to a contributory state pension; however, his employment pension is relatively low allowing for his length of service.

I also note that in; Fuchs & Köhler, paras 66 & 67;

 In that regard, the Court has accepted that a measure that allows for the compulsory retirement of workers when they reach the age of 65 can meet the aim of encouraging recruitment and be regarded as not unduly prejudicing the legitimate claims of the workers concerned, if those workers are entitled to a pension the level of which cannot be regarded as unreasonable (see, to that effect, Palacios de la Villa, paragraph 73). The Court has also held, in regard to a measure requiring the automatic termination of employment contracts at that age, in a sector in which, according to the national court, that measure was liable to cause significant financial hardship to the worker concerned, that that measure did not go beyond what was necessary to achieve the desired aims, in particular the encouragement of recruitment. The Court took into account the fact that the worker was eligible for payment of a pension while at the same time remaining in the labour market and enjoying protection from discrimination on grounds of age (see, to that effect, Rosenbladt, paragraphs 73 to 76).

67      In the present cases in the main proceedings, it is apparent from the documents before the Court that prosecutors retire, as a rule, at the age of 65 on a full pension equivalent to approximately 72% of their final salary. Furthermore, Paragraph 50(3) of the HBG provides for the possibility of prosecutors working for a further three years until the age of 68 if they so request and if it is in the interests of the service. Finally, national law does not prevent prosecutors from exercising another professional activity, such as that of legal adviser, with no age limit.

68      Taking those matters into account, it must be held that a measure which provides for prosecutors to retire when they reach the age of 65, as laid down under Paragraph 50(1) of the HBG, does not go beyond what is necessary to achieve the aim of establishing a balanced age structure in order to encourage the recruitment and promotion of young people, to improve personnel management and thereby to prevent possible disputes concerning employees’ fitness to work beyond a certain age.

A notable distinguishing fact in this case is a very modest employer pension from the state despite having more than 20 years’ service. The question arises is mandatory retirement proportionate for this class of worker? The OECD define people as poor when their equivalent disposable household income is less than 50% of the median and that figure for 2022 was about €55,000.

The fact that he can draw down a contributory state pension at age 66 must be viewed relative to the cost of living and with reference to economic analysis, such as that detailed in the ESRI report.  It is not the case that the contributory state pension is designed to provide an adequate standard of living, rather it supports the worker along with other pension income, as is clear from the decision to implement auto enrolment regarding pension contributions. A valid question is allowing for the pension entitlement of this worker, is it proportionate and reasonable to have a mandatory retirement age of 70? On the facts based on 20 years’ service, Mr. Ronan received the sum of €83.61 per fortnight as his occupational pension and when combined with his state contributory pension he has the following gross income:

•            Contributory State Weekly Gross Pension of €277.30 which will rise to €289.00 post the budget

•            Annual Gross Defined Benefit Pension of €4160 or €88.65 per week.

•            Annual another Gross Company Pension of €1000 or €19.23 per week

His annual gross income is €20,600. Arising from his personal circumstances and a modest pension income the Complainant stated that he must work.

His disposable income is less again and so objectively it can be concluded that mandatory retirement will impact him harshly when compared to median household disposable income and what defines poverty.

His opportunity to fully participate in the workforce and augment this pension is limited based on his age. Mallon may be distinguished from this case where the Complainant was a solicitor and in addition to his contributory pension he could participate and continue in paid employment as well.

 The age economic comparisons as detailed in the ESRI report show that absent of paid employment, the Complainant is likely to experience financial hardship.

I now must return to paragraph 10 of Mallon:

(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)

I have determined on the facts that Mr Ronan will not have an adequate income arising from his mandatory retirement and that he is highly likely to experience financial hardship. His occupational pension benefit will not significantly offset that vulnerability.

I also note that there was no provision for Mr Ronan to continue in his position on a short-term basis such as a fixed term contract as referenced in the CJEU case law.

While he is free to pursue other employment, the reality is older persons do encounter age discrimination and their chances of obtaining alternative employment is significantly less than younger candidates, particularly at age 70.

The State has pursued a legitimate aim for this broad cohort of civil servants; however, for a class of employee on lower salaries, who have not accrued full service and where their state contributory pension is integrated into the employer pension scheme, it will give rise to a relatively lower pension when compared to those on higher salaries. The entitlement to a contributory pension is this case is based on a working life of nearly 50 years and making the appropriate PRSI contributions. That contribution and benefit will not offset the likelihood of financial hardship based on his total gross income and more importantly his disposable income and his low probability of participating in the workforce at age 70. The mandatory retirement age of 70 in these circumstances is not reasonable and proportionate arising from the hardship that it will cause. 

The law provides for differences in mandatory retirement ages and Mallon comprehensively addresses when that discrimination is legitimate, reasonable, and proportionate. However, it also references CJEU caselaw where an adequate pension combined with continuing participation in the workforce are factors to be considered (see paragraph 10). In this case

A Complainant is not restricted to a particular comparator and in particular circumstances the law provides for a hypothetical comparator. Prima Facie mandatory retirement is discriminatory unless it is objectively justified and is proportionate.

The decision of the Labour Court in Togher Developments v Edgars Grods EDA 105 was considered with reference to hypothetical comparators. It was found that the complainant had failed to adduce evidence that a hypothetical comparator would have been treated differently in similar circumstances. The complaint was rejected. I note in the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings, A focus on Belgium, France and Ireland by Julie Ringheim that:

The definition of direct discrimination allows for the use of a hypothetical comparator. Courts have also accepted that a presumption of discrimination can be inferred from other types of facts that raise the suspicion that the adverse treatment was determined by a prohibited ground. Thus, Irish courts have recognised in some cases that this causal link could be inferred from the fact that the respondent’s conduct diverged from standard practice in relation to the service in question. (SeeMelbury)

In Regan Employment Law 2nd Ed chapter 17, the use of a hypothetical comparator is referenced:

‘Less favourable treatment’ is more commonly known as ‘direct discrimination’ although that particular phrase is not used in the Employment Equality Act. In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. If a complainant is unable to demonstrate that the chosen comparator/s were treated less favourably, if for example all employees were treated equally poorly or unlawfully, the claim of discrimination will fail. The wording of s 6 ‘would be treated’ allows for the use of hypothetical comparators in appropriate circumstances of alleged discriminatory treatment, other than in relation to equal pay where an actual comparator is required. 

The use of a hypothetical comparator in the context of a mandatory retirement age is appropriate. The Complainant can also refer to others who work without such an age limit as he does. That in turn has been objectively justified.

The question arises does the measure of mandatory retirement that at face value is discriminatory; however, is legal when objectively justified, reasonable and proportionate, create undue hardship in this case?

Prima Facie Test

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’  And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.

The principle in discrimination litigation is that once a claimant establishes a prima facie case of discrimination the onus shifts to the respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant must ‘prove on the balance of probabilities facts from which the tribunal could conclude, [this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment. However, a difference in treatment can meet this test, In Brunnhofer, for instance, the CJEU held that where a female worker proves that the pay she receives from her employer is less than that of a male colleague and that they both perform the same work or work of equal value, she is prima facie the victim of discrimination.28 (the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings,Judgment of 26 June 2001, Susanna Brunnhofer v Bank der österreichischen Postsparkassse AG, C-381/99, para. 58)

The Complainant has established primary facts that are sufficient to establish a causal link between the ground of age and the less favourable treatment relating to the termination of his contract of employment. The case law establishes that an employer may discriminate based on age for objective reasons and specifically relating to retirement based on a legitimate aim. However, that right is not unfettered and must be reasonable and proportionate. I have determined that in this case arising from financial hardship and the absence of a policy that could extend his employment for a short term in order to offset that hardship, that he was discriminated against on the ground of age.

I have determined that the Complainant was discriminated against on the ground of age. This arises as in his case the mandatory retirement age, while unintended gives rise to undue harsh financial consequences. There is no mechanism in place to assess an employee’s request for an extension based on financial hardship. The fact that he worked after age 66 when he was eligible for a contributory pension cannot be the objective measure of income adequacy. That assessment must be based on economic data which identifies when an individual is at risk of poverty relative to the median household disposable income comparator or other relevant data such as that compiled by the ESRI. The fact is that in this case the disposable income in retirement is objectively low against the age and household comparators referenced in the CSO and ESRI reports. A low disposable income is likely to cause hardship. That establishes a prima facie case of discrimination. In turn that shifts the burden onto the Employer to justify that policy. I have determined that the measure of a mandatory retirement age is objectively justified subject to be being reasonable and proportionate.  In this case the disproportionate impact without a compensating mechanism such as an extension of the employment on a fixed term basis as specifically referenced in CJEU jurisprudence, along with a very low probability of obtaining paid employment, I must conclude that the Employer has not rebutted the prima facie case that the measure is unduly harsh. On that basis I determine that he was discriminated against on the ground of age.

As detailed at paragraph 10 in Mallon:

(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)

I have determined on the facts of this case that the mandatory retirement age for this Complainant was unreasonable.

The Act provides for the following redress:

82.— (1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission] under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision;

(b) an order for equal remuneration from the date referred to in paragraph (a);

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;

(d) an order for equal treatment in whatever respect is relevant to the case;

(e) an order that a person or persons specified in the order take a course of action which is so specified;

(f) an order for re-instatement or re-engagement, with or without an order for compensation.

(2)

(3) The types of redress for which the Circuit Court may provide on a reference under section 77(3) are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 6 years before the date of the referral;

(b) an order for equal remuneration from the date of the referral;

(c) the orders referred to in paragraphs (c) to (f)] of subsection (1).

and no enactment relating to the jurisdiction of the Circuit Court shall be taken to limit the amount of compensation or remuneration which may be ordered by the Circuit Court by virtue of this subsection.

(4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission] by way of compensation under subsection (1)(c) or (1)(f) shall be

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000,

or

(b) in any other case, €13,000.

I consider reengagement to be an appropriate redress having regard both to Mallon and CJEU jurisprudence that states:

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

Reengagement for a period of 3 years provides a window to the Complainant to adjust to a lower income level while at the same time provides a fixed period for this exception to apply. It strikes a balance between softening the undue hardship arising from the mandatory retirement age and the Employer’s legitimate aim to set a mandatory retirement age. Reinstatement is not appropriate as it has been determined that a mandatory retirement is a legitimate aim. While compensation was an alternative remedy participating in paid employment also attracts other benefits including the intrinsic value of the role and social connection. In this case reengagement is the more appropriate remedy. The Complainant in this case is a driver in a large workforce and his reengagement does not attract consideration of factors that may be more appropriate at a senior level  or in a smaller organisation and particularly in the context of the cessation of employment based on a mandatory retirement age that is unrelated to conduct or performance.

I order that the Complainant be reengaged as a driver within four weeks of the date of this decision and that his employment is extended by a further 3 years from the date of reengagement, and that his completed service up to 3 years is treated as pensionable service and that this additional service will be calculated for pension purposes as per his original commencement of employment in the service.

Financial Impact- Mandatory Retirement.