Ireland

The Labour Court recently issued its decision on an appeal of a Workplace Relations Commission (“WRC”) decision which found that Mr Tom Ronan, a civilian garda driver (the “Complainant”), was discriminated against when he was forced to retire at 70. The WRC Adjudicator, Brian Dalton, ordered re-engagement of the Complainant in his role as a driver and a three-year extension of his employment from the date of re-engagement. We examined the WRC decision in our newsletter article “WRC Orders Re-Engagement of Driver Forced to Retire at 70 – Mandatory Retirement ‘Highly Likely’ to Cause Him Financial Hardship” here. In An Garda Siochana v Tom Ronan (EDA2560) the Labour Court overturned the WRC decision. Facts: The Complainant was a Civil Servant who commenced employment as a driver with the Department of Justice in January 2020, and was subsequently transferred to An Garda Síochána. He was retired from his role when he reached the mandatory retirement age of 70. The Complainant argued that some of his colleagues in comparable roles were permitted to work past 70. He claimed that he was discriminated against on the ground of age and that he needed to keep working due to his personal circumstances, arguing that he would endure financial hardship post-retirement. The Adjudicator in the WRC agreed that he was discriminated against notwithstanding that the retirement age had already been found to be objectively justified, placing significant emphasis on the issue of financial hardship. He decided that on the facts of the case, the mandatory retirement age for the Complainant was unreasonable. The Complainant then sought a High Court injunction to essentially give effect to the WRC Order which was under appeal to the Labour Court. An interim injunction was initially granted, but an interlocutory injunction was refused on the basis that there was a statutory remedy available and the WRC and Labour Court were the most appropriate fora to decide on the matter. Mr Justice Mulcahy pointed out that section 43(3) of the Workplace Relations Act 2015 makes it clear that where a WRC decision is appealed to the Labour Court, the WRC Order cannot be enforced by the District Court and a WRC Order which is under appeal should not be considered as being operative. We wrote an article examining the High Court decision entitled “Leave to Appeal to Supreme Court Sought by Civilian Garda Driver who was Refused Interlocutory Injunction by High Court” here. Labour Court decision: The Labour Court referred to the Supreme Court decision in Mallon v The Minister for Justice, Ireland and the Attorney General [2024] IESC 20 in which, at paragraph 88 of the judgment, Mr Justice Collins emphatically endorsed the State’s decision to apply a mandatory retirement age of 70 to the majority of public servants. The Court referred also to paragraph 92 of the judgment where Collins J pointed out that this is “considerably higher” than the current pensionable age of 66 in respect of the Social Welfare Consolidation Act 2005. The Labour Court noted that it was bound by the Supreme Court’s decision in Mallon and found that the Complainant’s complaint that he was discriminated against by the Respondent when he was compulsorily retired was not well founded. The Court stated that the Respondent’s decision was “nothing more than the implementation of the State’s policy as embodied in the 2018 Act and that Act does not give any discretion to individual public sector employers to extend an individual public servant’s employment beyond his or her seventieth birthday.” Finally, the Labour Court found that the Complainant’s attempt to compare his situation to colleague civilian drivers who were recruited between 2004 and 2012 (and do not have a mandatory retirement age) was inappropriate: “It is a matter of public record that the State decided against retrospectively applying a mandatory retirement age to this cohort of public servants when enacting the 2018 Act as to have done so could have given rise to a perception of unfairness and may have been inconsistent with those workers’ legitimate expectations.” Takeaway for Employers: The area of mandatory retirement and age discrimination is a complex one which has given rise to numerous WRC and Labour Court decisions in recent times. As noted in our article “WRC Orders Re-Engagement of Driver Forced to Retire at 70 – Mandatory Retirement ‘Highly Likely’ to Cause Him Financial Hardship” (link above), employers will not be used to having to consider an employee’s financial situation in making a decision about mandatory retirement in an individual case. The Labour Court decision is welcome clarification on this point and appears to be the right decision, particularly in circumstances where the retirement age had already been found by the Supreme Court to be objectively justified. Link: https://www.workplacerelations.ie/en/cases/2025/august/eda2560.html  Author - Jenny Wakely 19th September 2025 AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie

The Supreme Court judgement (of O’Donnell CJ, Dunne J, Hogan J, Murray J and Collins J) in Patrick Dillon v. Irish Life Assurance PLC which was handed down on 24th  July 2025, considered whether claims for emotional distress as a result of a data breach falls within the definition of ‘personal injury’ under the Personal Injuries Assessment Board Act 2003 and whether obtaining PIAB authorisation to initiate proceedings was required. It found that such a claim did not come within the definition of a ‘personal injury’ claim. It will be interesting to see the application of this decision going forward to other potential claims in the employment law area. Facts: The Plaintiff, Patrick Dillon, held a life assurance policy with the Defendant,  Irish Life. The Defendant issued in error six letters in relation to the Plaintiff’s policy containing  his personal and financial data between 2008 and 2020 and sent them to a  third party. The Plaintiff issued proceedings in the Circuit Court alleging that the data breaches were caused by negligence and breach of duty, including breach of statutory duty and caused him “distress, upset, anxiety, inconvenience, loss and damage”. This was due to the alleged breach by the Defendant of the Data Protection legislation. The Defendant argued that the Plaintiff’s claim fell  within the definition of ‘personal injury’ within the meaning of the Civil Liability Act 1961 which requires a pre-authorisation from PIAB, which the Plaintiff had not obtained. Also, it argued  that he should have commenced proceedings by Personal Injuries Civil Bill rather than the Equity Civil Bill in which they were instituted. Both the Circuit Court and the High Court on appeal found that the proceedings sought damages for ‘personal injury’ and that PIAB authorisation should have been obtained before instituting proceedings and therefore they dismissed his claim. The Supreme Court granted Plaintiff the leave to appeal the High Court decision as it considered this case raised issues of general public importance about whether a claim for damages for “distress, upset and anxiety” arising from a data breach could possibly be seen as a claim for damages for personal injury and the compatibility of PIAB authorisation requirement with EU law. Decision: In this decision there was two key issues that fell for consideration . One being whether the non-material damage (distress, upset and anxiety) fell within the statutory definition of ‘personal injury’ as found by the High Court. The second issue being if the Plaintiff’s claim is a form of ‘personal injury’ , whether a requirement to apply to PIAB for pre-authorisation  would render it extensively difficult for the plaintiff to exercise his rights to compensation for non-material damage under the GDPR in breach of the EU Directive. The Supreme Court judgement delves into the statutory and common law definition of the term ‘personal injury’. This judgment highlights that in relation to the various statutory definitions: ‘it is easy to lose sight of the fact that while the definition of ‘personal injury’ used in these statutes is comprehensive, in none of them does it purport to be of general application. It is instead used for various distinct, related but quite specific purposes.’ The Court also refers to the case of Clark v O’Gorman where it was held that a personal injury action is not a claim in which standalone damages are sought to compensate for distress and anxiety. Mr. Justice Brian Murray held that the Plaintiff’s claim in negligence was misconceived as he cannot obtain damages in negligence for mental distress that falls short of a psychiatric injury. However, he held that the Plaintiff had a standalone claim for non-material damage pursuant to the unique claim set out in Section 117 of the Data Protection Acts. He also held that where a plaintiff’s claims are solely for mental distress, upset and anxiety that the plaintiff cannot expect anything other than very, very modest awards. Takeaway for Employers: The Supreme Court’s Decision in Dillon v Irish Life Assurance Plc is important to note where claims for emotional upset, distress, or anxiety without a recognised psychiatric illness do not qualify as personal injury but also illustrates where such claims may still proceed in respect of certain statutory obligations. While this decision specifically related to the breach of GDPR and the remedy provided for in that legislation, it will be interesting to see if the decision will be applied to other statutory remedies where there is non-material damage such as under the Protected Disclosures Acts or under the Safety, Health and Welfare at Work Acts. Link: https://www2.courts.ie/view/judgments/56f5ca9a-b457-4cc2-b47d-430d66ec47d2/94687f75-3845-4430-be87-9699d49b9460/2025_IESC_37.pdf/pdf Authors – Anne O’Connell & Abigail Ansell 18 September 2025 AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie

In Emily Williams v Board of Management, St Tola’s National School (ADJ-00055461) the Complainant alleged she was discriminated against by reason of her family status by the Respondent primary school. The Complainant submitted a complaint to the Workplace Relations Commission (“WRC”) under the Employment Equality Acts 1998-2015 (the “Acts”). Facts: The Complainant was employed by the Respondent as a teacher on a series of fixed-term contracts from September 2022 to August 2024. The Complainant felt she was treated less favourably than others when being considered for teaching roles because she was on maternity leave. The discrimination complaint submitted by the Complainant focused on two main incidents: The awarding of a Contract of Indefinite Duration (“CID”) to her colleague – “Comparator A” Not being appointed to a further fixed-term position available within the Respondent school - losing out to “Comparator B” and her treatment during this interview process In February 2024 a permanent vacancy arose in the Respondent school due to a resignation while the Complainant was on maternity leave. At the time the Complainant and another teacher “Comparator A” were eligible for a CID, both having worked at the school for two years on fixed-term contracts. The Complainant submitted to the WRC that the Principal of the Respondent awarded the CID to Comparator A without informing her (she found out through a colleague) and without any transparency regarding the decision-making process. The Complainant made inquiries and was later informed that the CID had been awarded based on the highest score from a previous interview round in 2023. The Principal of the Respondent gave evidence to the WRC that this was school policy. On 18th June 2024 the Complainant interviewed for a fixed-term position in the school for the new school year. At the end of the interview, the Principal congratulated her on the birth of her baby daughter and stated “you really should enjoy every moment at home with the baby”. The Complainant gave evidence to the WRC that she felt it was unprofessional to discuss her maternity leave in front of the interview panel and that the comment seemed to hint at her not receiving the position. The Respondent gave evidence to the WRC that the interview was over when the comment was made and all questions had already been asked and answered. The following day the Complainant was informed that her application was unsuccessful. The Complainant requested her interview scores from the Respondent following contact with her union, the Irish National Teachers’ Organisation (“INTO”). The Complainant told the WRC that she learned from INTO that the school could “roll-over” a teacher’s contract in their third year and there was no requirement to hold another fixed-term position interview. The Complainant believed that the Board of Management decided to proceed with interviews for the fixed-term position, and score her unfairly, because of the possibility that she might have decided to extend her maternity leave if offered the position. When there was still no reply to her request for her interview scores by 27th August, INTO suggested to the Complainant that she contact the Principal and let her know that she was uncomfortable with the two incidents referred to above, and ask if she would take a call from INTO. The Principal emailed the Complainant later that day re-iterating that the CID was awarded to the candidate with the highest score from the previous interview round. On 29th August the Principal emailed the Complainant her interview scores, however there were no interview notes attached. Decision: The Adjudicator, Patricia Owens, firstly addressed a preliminary matter regarding statutory time limits. In normal course, complaints under the Acts must be submitted to the WRC within 6 months of the alleged contravention (with an extension of a further 6 months possible in limited circumstances if there was reasonable cause for the delay). The Complainant submitted her complaint to the WRC in November 2024, and the most recent occurrence of alleged discrimination was the interview for the fixed-term position on 18th June 2024. While the CID was awarded in May 2024 and the Respondent argued that a claim relating to that matter was out of time, the Adjudicator found that a continuum of discrimination existed that began with the awarding of the CID and culminated in the Complainant not being appointed to a fixed term position for the new school year. On that basis, the Adjudicator was satisfied that all of the issues forming part of the Complainant’s claim were within time. The Adjudicator referred to settled law that, in the first instance, the onus is on the employee to establish an arguable case of discrimination before the Respondent is required to rebut it. The Adjudicator was satisfied that the Complainant had discharged this evidential burden. The Adjudicator noted in particular the Complainant’s arguments that she was treated unfavourably compared to her comparators not on maternity leave; that Comparator A, who was not as experienced as her, was awarded the CID based on a previous interview process in 2023; and that Comparator B, who had only previously provided ad hoc cover to the school, was appointed to the fixed-term position. After proceeding to hear the substantive case, the Adjudicator found that the complaint of discrimination was well-founded and ordered the Respondent to pay €85,000 in compensation for the discrimination. The Adjudicator concluded that no satisfactory explanation was given for the decision to award the CID based on the order of merit in the previous fixed-term competition in 2023. The Adjudicator noted that the equal entitlement of the Complainant to be considered for the CID was disregarded even to the point that the Respondent believed she had no entitlement to be informed a viable CID was available. The Respondent’s explanation that it was school policy was rejected by the Adjudicator, as it emerged during the course of the hearing that no such policy existed. The Adjudicator had regard to the Department of Education and Skills’ Circular No. 44/2019. This circular provides that reference may be made to a panel of suitable applicants being set up for future vacancies when advertising teaching positions, but that “permanent vacancies may not be filled from a panel established following interviews for a fixed-term post”. In addition, the circular provided that where a panel is compiled, it is applicable for any vacancies filled “within four months”. The Adjudicator noted that the CID was a permanent vacancy, and that the appointment for the CID in 2024 based on the 2023 panel was well outside the four-month timeline prescribed in the circular. In relation to the fixed-term position, the Adjudicator concluded that the Respondent failed to provide any evidence (such as interview notes) to explain how the interview panel arrived at their conclusions for the interview scores. The Adjudicator considered the absence of such evidence to be “fatal” to the Respondent’s defence of the inference of discrimination. In relation to the qualifications category, both the Complainant and Comparator B received the same score. However, in nearly all other categories the members of the interview panel scored the Complainant lower. In particular, the Adjudicator noted that the Complainant, who had 2 years’ experience working in the school, was marked lower in relation to both “Classroom Management & Administration” and “Awareness of School Procedures” than a candidate who had provided ad hoc cover. One of the marking sheets for the Complainant also had a reduction in one of the scores which was not adequately explained at the hearing. In relation to the comments made by the Principal, the Adjudicator found that the Respondent had failed to demonstrate that these comments did not have an adverse effect on the interview outcome. The Adjudicator appreciated that it may well have been the Principal’s intention to pass on her well wishes, however the interview had not yet closed when the comments were made. Even if the questioning had concluded, the scoring had not yet been completed, and the Adjudicator found it “entirely inappropriate” that comments relating to the Complainant’s family status were addressed to her during the interview. Takeaway for Employers: This WRC decision illustrates the evidential burden that employers bear in employment equality cases. While the initial burden is on the employee to successfully make out a prima facie case, the employer is then required to provide evidence to rebut the inference of discrimination. The absence of interview notes in this case was fatal to the school’s defence, particularly where the identified comparator appeared to have less experience than the Complainant. It is important that all documentation from recruitment processes is retained so that employers can demonstrate their appointments are based on objective criteria and not based on any of the nine discriminatory grounds. Link - https://www.workplacerelations.ie/en/cases/2025/august/adj-00055461.html Authors – Tara Kelly and Jenny Wakely 30th September 2025 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2 www.aocsolicitors.ie

The Workplace Relations Commission (“WRC”) and the Labour Court (the “Court”) each recently issued a decision on the subject of mandatory retirement ages in Denise Murphy v Royal College of Surgeons in Ireland (ADJ-00046831) (WRC decision) and Deepak fasteners (Shannon) Ltd v Liam Murphy (EDA2545) (Labour Court decision). The decisions demonstrate the requirement for employers to ensure that they have in place appropriate contractual provisions and retirement policies. Denise Murphy v Royal College of Surgeons in Ireland (ADJ-00046831) Facts: The Complainant in this case had worked for the Respondent on a contract of indefinite duration from May 2012. She worked as a secretary to the Respondent’s Pathology Department. The Complainant’s contract of employment stated that the normal retirement age would be the Complainant’s 65th birthday. The Complainant turned 65 on 24th February 2022. She was aware of the mandatory retirement age and the Respondent’s retirement age policy, but she wanted to continue working. Before her 65th birthday, the Complainant spoke to the Head of the Department who discussed the matter with the Complainant’s manager. The Respondent allowed the Complainant to continue working for an additional one-year period on an exceptional basis, and she was provided with a fixed term contract and worked for another year. The Complainant’s request for a further extension was refused and she was officially retired on 23rd February 2023. The Complainant learned that other staff members had been permitted to continue working beyond the age of 66. She viewed this as diluting the “exceptional” nature of her one-year extension, and she lodged a discrimination complaint in the WRC. The Respondent accepted that, at the date of hearing, 27 employees were working who were over the age of 66. However, the Respondent’s position was that those employees worked in technical and academic roles that were more difficult to replace. Decision: The Adjudicator, Penelope McGrath, noted that the Complainant’s contract of employment “very clearly stipulated” that the normal retirement age would be the Complainant’s 65th birthday. She also referred to what she described as a “well-advertised and formal” in-house policy that was in force throughout the Complainant’s employment. This policy clearly described the reasons or justifications for the mandatory retirement age. The Adjudicator referred to the Respondent’s decision to facilitate a one-year extension for the Complainant, which was objectively justified by the Respondent as a measure that would greatly assist a smooth transition during a period of change that the Department of Pathology was experiencing at that time. The paperwork also demonstrated that there was a clear succession plan for the transfer of the Complainant’s role to her replacement in advance of the end of her extended period of employment. The Adjudicator noted that the one-year extension provided to the Complainant was in line with the in-house retirement age policy which specifically permits such extensions as follows: “In exceptional circumstances RCSI reserves the right to engage with employees, if agreeable, post-retirement age. This will be done on a case-by-case basis, subject to business needs and each case will be objectively justified on its own merits. The furtherance of the employment relationship will be subject to the terms and conditions as set out in the contract for which the post-retirement age engagement is required and agreed. Any contracts issued to staff employed beyond 65 will be temporary, time bound, subject to specific objective justification and will note the changes in eligibility to staff benefits, including, pension provision and insurance cover. All staff have the right to retire at 65. Subject to agreement by both parties, RCSI continues to reserve the right to retain the services of strategically important employees and retain the expertise of experienced staff in specialist roles e.g. Surgeon Prosectors. The extension of these roles will be objectively justified.” The Adjudicator further noted the clear language used in the Complainant’s fixed term/extension contract in respect of the objective justification for the issuance of a fixed-term contract rather than a contract of indefinite duration, and the fact that the contract was an “exceptional post-retirement one-year fixed term contract to support the department of Pathology.” In response to the Complainant’s argument that the Respondent’s implementation of the retirement policy was selective and discriminatory, given that a significant number of employees were permitted to work beyond 66, the Adjudicator found that these “derogations” from the implementation of the retirement policy did not serve to “de-legitimise” or “undermine” the retirement policy. She accepted the Respondent’s argument that it needed to retain specialist skills and technical know-how and that certain staff could not be easily replaced. The Adjudicator found that the Complainant had not been discriminated against by the Respondent when it terminated her employment in February 2023. Deepak fasteners (Shannon) Ltd v Liam Murphy (EDA2545) Facts: This case was an appeal by Mr Murphy (the “Complainant”) from a decision of the WRC that his discrimination complaint was not well-founded. In this case, the Complainant had been employed as a General Operative from February 1977 until he was compulsorily retired on his 65th birthday on 27th February 2022. He had asked to be allowed to continue working after that date, but the Respondent did not agree. The Complainant gave evidence that he was still “fit and competent” to carry out his work and that he had not been asked to undertake a risk assessment or occupational health assessment before he was compulsorily retired. The Respondent’s CEO gave evidence about the business needing to “pivot in a new direction”, making it necessary for it to hire new employees with specific skills. He accepted that no meeting had taken place with the Complainant in respect of his application for longer working, and conceded that he could not remember having reviewed the Code of Practice on Longer Working. He also accepted that another employee had been allowed to continue working after his 65th birthday. Decision: The Court found that there was no mandatory retirement provision in the Complainant’s contract of employment. It also found that there was no evidence that the Respondent had ever given “serious consideration” to putting in place a “contemporary” retirement policy in line with the Code of Practice on Longer Working and the “evolution of employment equality legislation”. The Court criticised the Respondent for having had “no regard whatsoever” to the Code of Practice and for not having engaged “in any meaningful way” with the Complainant’s request to work beyond 65. The Court noted that had been no performance, health and safety or concentration issues with the Complainant. The Court concluded that the Respondent discriminated against the Complainant in compulsorily retiring him, noting that there was “no objective justification that the Respondent can rely on in support of its decision of [sic] compulsorily retire the Complainant simply because he reached the age of 65.” The Complainant was awarded €18,000 for the effects of the discrimination, equivalent to approximately six months’ gross pay. Takeaway for Employers: The WRC and Labour Court have issued a number of recent decisions on the issue of mandatory retirement (links to a sample of some of our recent articles on mandatory retirement, post-retirement fixed term contracts, and the Code of Practice on Longer Working are below). Recent decisions have not always been consistent in approach including, for example, in respect of the importance placed on the Code of Practice for Longer Working (referred to by the Labour Court in Deepak decision, but not by the WRC in the Denise Murphy decision). However, what remains clear from WRC and Labour Court decisions is the need for employers to ensure that if they intend to rely upon a mandatory retirement age, it needs to be clearly set out in their contracts of employment, and appropriate retirement policies ought to be in place and adhered to. Employers need to ensure that they properly engage with any requests for longer working and, while some decisions do not specifically refer to the Code of Practice, employers should have due regard to the Code, and it ought to be reflected in their retirement policies. Employers should always be cognisant of the requirement to objectively justify any decision to compulsorily retire an employee/permit an employee to work beyond its mandatory retirement age, and to communicate the objective justification to employees. This area of employment law is a complex one and legal advice is advisable.  Links: WRC decision: https://workplacerelations.ie/en/cases/2025/july/adj-00046831.html Labour Court decision: https://workplacerelations.ie/en/cases/2025/august/eda2545.html Links to some previous articles on mandatory retirement, post-retirement fixed term contracts, and the Code of Practice on Longer Working: Recent Caselaw: Mandatory Retirement Ages and Post-Retirement Fixed Term Contracts: https://aocsolicitors.ie/recent-caselaw-mandatory-retirement-ages-and-post-retirement-fixed-term-contracts/ WRC Find it is Not Unlawful for Employer to Enforce Mandatory Retirement Age, Despite Shortcomings in Following Code of Practice: https://aocsolicitors.ie/wrc-find-it-is-not-unlawful-for-employer-to-enforce-mandatory-retirement-age-despite-shortcomings-in-following-code-of-practice/ Author - Jenny Wakely 31st July 2025 AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie