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This article discusses a recent Workplace Relations Commission “WRC” decision and a recent Labour Court decision on the knotty subject of mandatory retirement ages.
Case 1: Tom Kitterick v Mayo County Fire Service (ADJ-00050808)
Facts:
Mr. Kitterick (the “Complainant”) commenced working for the Respondent in 2008 as a fire fighter at the Westport Fire Service in County Mayo. In 2019 he was promoted to Station Officer. The Complainant had been granted two extensions of his employment, from age 55 to 58 and from 58 to 60. Both occurred after he completed a successful medical assessment. The Complainant then requested to be retained beyond his 60th birthday. However, his employment terminated on the 18th December 2023, his 60th birthday. The Complainant sued under the Employment Equality Acts 1998-2015 as amended (hereinafter the “EEA”) on the basis of discrimination on the grounds of age.
Of note is the fact that the refusal to extend the Complainant’s contract beyond retirement age came just three months prior to the introduction of a new circular which extended mandatory retirement age to 62. This proposed extension had been flagged in August 2023 and unions and management were supporting it, although the circular did not issue or take effect until May 2024.
Decision:
The WRC Adjudicator’s decision is interesting as it goes through and applies the principles laid down by the Supreme Court in last year’s landmark judgement on mandatory retirement ages in the case of Mallon v the Minister for Justice & Ors [2024] IESC 20. See our previous article on the Mallon decision here (https://aocsolicitors.ie/supreme-court-clarifies-law-on-mandatory-retirement-ages/ ).
Having gone through the Mallon principles the Adjudicator determined that the Complainant had clearly established a prima facie case that an act of discrimination took place in relation to mandatory retirement on his 60th birthday.
However, an employer can still successfully defend such act of discrimination if it can establish that the relevant mandatory retirement age was objectively and reasonably justified by a legitimate aim; and the means of achieving that aim were appropriate and necessary.
The Adjudicator acknowledged the principle determined in Mallon that the relevant competent authority is better placed than the courts to assess what is necessary or appropriate for the effective operation of the role. The Adjudicator also accepted that the physical and mental abilities of retained firefighters are crucial for the role and the proper functioning of the fire service and that the Respondent acted in accordance with the ciruclar that was in place at the time. Therefore, the mandatory retirement age was objectively and reasonably justified by a “legitimate aim”.
However, the Adjudicator then went on to examine whether the means of achieving that aim were appropriate and necessary. The Adjudicator found there was no evidence of consideration of the means that were appropriate and necessary.
The Adjudicator distinguished this case from Mallon on the basis that the legislation in Mallon was clear and in place from the outset on mandatory retirement at age 70 years. In Mr. Ketterick’s case, the age was moving incrementally and there was a custom of joint engagement on the means of implementation.
The Adjudicator commented that it was regrettable no consideration had been given to using the normal medical assessment on an interim basis pending the “imminent” extension of the retirement age to 62.
Th Adjudicator determined that while she remained conscious of Mallon and the margin of appreciation to be afforded to the appropriate authority, she nevertheless viewed the lack of consideration of any appropriate means as unreasonable. She determined that the Complainant was left in limbo with no consideration on his extension request, either nationally or locally.
The Adjudicator was critical of the fact that unlike the previous occasions when the retirement age increased, there was no lead in period considered; there was no interim extension of his contract considered; and there was no consideration to facilitate his return or apply the circular retrospectively once the new circular extending the age to 62 issued.
The Adudicator found the Complainant was discriminated against on the grounds of age.
The Adjudicator made an award of €9,500 by way of compensation to the Complainant. The Adjudicator commented that she would have considered awarding re-instatement but the Complainant had sought compensation.
This WRC decision is the latest in a string of WRC decisions on the issue of mandatory retirement ages for retained fire fighters. The WRC arrived at a similar decision to the decision issued in Ketterick in the previous cases of Jim Murphy v Carlow County Council ADJ- 00052056 available here (https://www.workplacerelations.ie/en/cases/2024/december/adj-00052056.html) and Paul Curran v Carlow County Council ADJ–00052052 (https://www.workplacerelations.ie/en/cases/2024/december/adj-00052052.html ).
Case 2: John Murphy v Bausch Health Ireland Limited (EDA2534)
The Complainant commenced employment with the Respondent on 9th April 2011 as a General Operative. The Respondent operates a normal retirement age of sixty-five. In May 2021, prior to reaching the Respondent’s retirement age, the Complainant had requested to work beyond the normal retirement age. This request was initially refused and the Complainant retired in October 2021 upon reaching the age of sixty-five.
The Complainant and Respondent subsequently reached an agreement under which the Respondent offered the Complainant a one-year fixed term contract which commenced on 29 October 2022 and was due to expire on 29 October 2023. The Complainant made written requests on 19 July 2023 and 21 August 2023 for a further one-year post retirement fixed term contract which were refused by the Respondent. The Complainant then submitted a complaint to the WRC, alleging discrimination on the grounds of age.
The Complainant was unsuccessful in his complaint of age discrimination to the WRC. The Adjudicating Officer held that the complaint was not well-founded and determined that “the Complainant’s employment ended because of the expiry of fixed term contract and for no other reason.”
The Complainant appealed to the Labour Court.
During the Labour Court hearing a member of the Respondent’s Human Resources team confirmed that the Respondent employs staff, including general operatives, on fixed term contracts from time-to-time. She also confirmed that on occasion these fixed-term contracts have been renewed. The Labour Court determined it was self-evident the employees so engaged on fixed term contracts – including those that were extended or renewed – were hired when of an age that is under the Respondent’s normal retirement age and were, at the material time, therefore, younger than the Complainant when he was offered and accepted a fixed-term contract which was not extended notwithstanding his request to do so.
Decision:
The Labour Court determined that the Complainant was prima facie treated less favourably than younger comparators on the age ground.
The Court allowed the Complainant’s appeal and awarded €2,000 to the Complainant by way of compensation, equivalent to one month’s gross pay.
Interestingly, this case seems to have turned on the availability of comparator employees who were younger than the Complainant and had been on fixed term contracts which had been renewed. It appears that had there been no such comparators, the employer may have been able to successfully defend the Complainant’s age discrimination claim on the basis that the Complainant’s employment expired by reason only of the expiry of his post-retirement fixed term contract. This defence has worked successfully for employers before the WRC in the past. By way of example, in the cases of Carl Davidson v Amari Ireland Limited – (ADJ00037279) and Peter O’Loughlin and the Health Service Executive (ADJ-00026333). See our previous article last year which reviewed the Davidson case (along with a number of other retirement age cases) – https://aocsolicitors.ie/recent-wrc-decisions-on-retirement-age/
Takeaway for Employers: The above mentioned cases add to evolving caselaw on mandatory retirement ages. The following are the key takeaways for employers:
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- If you wish to enforce a mandatory retirement age, you need to be able to demonstrate it serves a legitimate aim and that the means of achieving that aim are appropriate and necessary.
- Where an employer gives an employee a post-retirement fixed term contract of one year, for example, this may be sufficient to provide the employer with a defence to any subsequent age discrimination claim on the part of the employee so long as the only reason for the subsequent termination of the employment is the expiry of the post termination fixed term contract. However, this defence may not work where there are other younger staff members in comparable roles who were on fixed term contracts and had them renewed.
- While the giving of a one year post-retirement age fixed term contract might assist the employer in defending an age discrimination claim from that particular employee, where employers routinely give post-retirement fixed term contracts this could risk undermining the general mandatory retirement age in the organisation. For example, in the WRC case of Doreen Nolan v Alsaa, ADJ-00029859, the Adjudicator determined that there appeared to be a ‘rule of thumb’ that staff would be allowed to work on for a further two years which in effect was ignoring the employer’s stated retirement age of 65 in that case and bringing in a retirement age of 67.
- Employers should note this is a complex area of law that can be challenging to navigate. It is advisable to seek legal advice around the question of enforcing mandatory retirement ages in order to mitigate (in so far as possible) exposure to claims of age discrimination under the Acts.
- One final point of interest is the fact the WRC Adjudicator in the Ketterick case (and indeed the Adjudicators in the Curran and Murphy cases) confirmed a willingness to consider ordering reinstatement had the employee sought it. This is noteworthy in light of last year’s Supreme Court Judgement in the An Bord Banistíochta, Gaelscoil Moshíológ v The Labour Court and Aodhagán Ó Súird and the Department of Education [2024] IESC 38 where the Supreme Court determined that reinstatement is only to be ordered in “exceptional” circumstances. See our previous article on that Supreme Court decision here (https://aocsolicitors.ie/supreme-court-rules-high-court-erred-in-re-engaging-school-principal-in-a-manner-that-meant-he-was-effectively-reinstated/ ). See also our previous article here (https://aocsolicitors.ie/wrc-orders-reinstatement-of-employee-who-was-unfairly-dismissed/ ) on a recent WRC award of reinstatement.
Links –
https://www.workplacerelations.ie/en/cases/2025/april/adj-00050808.html
https://www.workplacerelations.ie/en/cases/2024/december/adj-00052056.html
https://www.workplacerelations.ie/en/cases/2024/december/adj-00052052.html
https://www.workplacerelations.ie/en/cases/2025/april/eda2534.html
https://www.workplacerelations.ie/en/cases/2020/december/adj-00026333.html
Authors – Lia Berkery & Laura Killelea
17th June 2024
Anne O’Connell Solicitors
19-22 Lower Baggot Street
Dublin 2.