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Eugene McEnery v Partners in Logistics Ltd (ADJ-00052442) concerned an employee who alleged he was subjected to discriminatory treatment by his employer on the grounds of his age, when he was forced to retire six months after reaching the age of 65. This case was brought before the Workplace Relations Commission (“WRC”) under the Employment Equality Acts 1998-2015 (the “Acts”). The Complainant also lodged a complaint of discrimination in relation to his salary on the grounds of age and gender.
Facts: The Complainant was employed by the Respondent from 1st January 2003 to 14th June 2024 as a warehouse operator. As the Complainant approached the age of 65 in November 2023, he submitted a formal request to extend his employment beyond the age of 65. There was a dispute between the parties on the precise events following this request. The Respondent argued they agreed to a temporary extension on the explicit understanding that it was on an exceptional basis. They submitted to the WRC that they knew the Complainant had recently gotten married and therefore granted him some flexibility around his retirement date. The Complainant argued that by agreeing to his request to work beyond his 65th birthday the Respondent had effectively confirmed there was no mandatory retirement age in the organisation.
In a meeting in April 2024 the option of the Complainant working a 3-day week until his 66th birthday was discussed. The Respondent told the WRC that they asked the Complainant what tasks he felt comfortable performing, in light of their recent move to a smaller warehouse. The Respondent had previously accommodated the Complainant’s medical condition by moving him indoors away from the cold environment of the warehouse, however this indoor role could no longer be facilitated in the new reduced space. The Complainant told the WRC that as he did not want to work a reduced working week of 3 days per week, he was later told his employment was being terminated with 8 weeks’ notice.
The Respondent submitted to the WRC that their retirement age of 65 was objectively justified and described the role of warehouse operator as a physically demanding and sometimes dangerous role. They highlighted the following objective justifications:
- Allowing employment opportunities for younger workers
- Health and safety concerns
- Addressing age imbalances in the workforce
- Succession planning
The Complainant stressed that there was no appeal process offered to him, as provided for in the Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 S.I. 600/2017 (the “Code of Practice”). The Respondent argued that it advised the Complainant that he could put reasons for an appeal to them and they would consider them.
In relation to the Complainant’s claim regarding his pay, the Complainant highlighted that the national minimum wage was €12.70 per hour from 1st January 2024 and colleagues younger than himself with less service had received increases. In addition, he flagged that female colleagues received an increase in their hourly rate of pay in 2023/2024 while he did not receive any increase. The Respondent told the WRC they were satisfied the Complainant was paid at the appropriate rate in accordance with his role, and any increases in January 2024 were to bring others in line with national minimum wage requirements. The Respondent also flagged that the indoor job the Complainant was reassigned to attracted a lower rate of pay but the Complainant had retained his higher rate of pay.
Decision: The Adjudicator, Orla Jones, held that the Complainant was not discriminated against on the grounds of age by the Respondent by their enforcement of a mandatory retirement age. The Adjudicator considered section 34(4) of the Acts which states it shall not constitute discrimination on the age ground to fix different ages for the retirement 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 Adjudicator noted that the Respondent’s evidence at the hearing came across as consistent and genuine. She commented that a key requirement for an employer to legitimately enforce a mandatory retirement age is to have a contractual retirement policy in place in the organisation. The Complainant’s contract included reference to a mandatory retirement age of 65 and the Adjudicator observed that the Complainant “seemed to veer” from arguing there was no mandatory retirement age to acknowledging he knew he was expected to retire at 65 due to the mandatory retirement age.
The Adjudicator acknowledged shortcomings in the Respondent not following the Code of Practice, in that the Complainant was not afforded access to a proper appeals process. However overall, she was satisfied in the context of all the evidence presented at the hearing that the retirement age in question was objectively and reasonably justified by legitimate aims and the means of achieving these aims were appropriate and necessary.
In relation to the Complainant’s claim regarding his pay, the Adjudicator was satisfied that he was not discriminated against on the grounds of age or gender in respect of his pay.
Takeaway for Employers: While this decision highlights that minor shortcomings in following the Code of Practice may be permissible, it is important to consider this finding may be confined to the facts and context of the decision itself. It is certainly advisable for all employers to familiarise themselves with the Code of Practice , which sets out best principles and practices to follow regarding requests to work beyond the normal retirement age. This is a complex area of law and employers should seek legal advice if seeking to enforce a mandatory retirement age.
Link – https://www.workplacerelations.ie/en/cases/2025/february/adj-00052442.html
Authors – Tara Kelly, Anne O’Connell
25th April 2025
Anne O’Connell
Solicitors
19-22 Lower Baggot Street
Dublin 2.