What a recent discrimination case can teach employers about mandatory retirement

A Knock Airport bartender was ‘surprised’ to learn he had to retire at 65.

By Christine West Senior associate, Mason Hayes & Curran

A RECENT LABOUR Court decision highlights the importance of specifying retirement ages in contracts of employment. The court found that dismissing an employee for their age was an act of discrimination.

Background

In the case under consideration, John Glavey had worked at Knock Airport as a senior bartender from 1991 until his dismissal.

He was originally employed by Campbell Catering and transferred to the employment of Connaught Airport Development Limited in 2003 when it took over the airport’s catering services.

Glavey’s employment contract with Campbell Catering did not include a retirement age.

In 2006, nearly three years after the transfer, following negotiations between management and the union, he was issued with a new contract of employment. This contract did not specify a retirement age either.

According to Glavey, it came as a complete surprise to him when he was informed that he would be retiring in January 2016 on his 65th birthday.

He argued that, due to the increase in the age of receipt of the state pension from 65 to 66 years, there was still a requirement on him to be available for work and that there was no justifiable objective reason for the employer to terminate his employment.

Glavey also argued that no legitimate aim or objective could be served by not allowing him to remain in work until he reached 66. He pointed to two employees who had remained in employment following their 65th birthdays.

The employer argued that the age of retirement of 65 years was justified within the meaning of the Employment Equality Act and European frameworks, and that the means chosen by the respondent were both appropriate and necessary for achieving that aim.

It argued that it was an express term and condition of Glavey’s employment that his employment would not continue past his 65th birthday.

The employer contended that it had one universal retirement age for all of its staff, ensuring consistency amongst all of its employees and creating certainty and succession planning.

The employer argued that although the contract did not contain a mandatory retirement clause it should be implied as the organisation’s accepted custom and practice.

It said that, since 1986, employees had to retire when they reached the age of 65 except in the most limited and exceptional circumstances.

It argued that exceptional circumstances had applied in the case of the two employees who had worked beyond their 65th birthdays.

The law

The Act allows an employer to fix a retirement age without contravening the prohibition of discrimination on grounds of age.

The EU directive provides that difference of treatment on grounds of age shall not constitute discrimination only where it is objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Determination

The court found that there was no express term in his conditions of employment requiring Glavey to retire at the age of 65, noting that the employer had numerous opportunities to include such a provision.

It also found that the employer had not provided any evidence to demonstrate that Glavey had been informed of the retirement age or provided with any documentation from which this could be discerned.

The court did not accept that a retirement age of 65 had been implied or incorporated into Glavey’s contract of employment.

It held that the employer had not fixed a retirement age and that Glavey had been dismissed because of his age.

In view of this, there was no requirement for the court to consider any of the employer’s arguments of objective justification for a retirement age of 65.

The complainant was awarded a sum of €6,500 for the effects of the act of discrimination, having clarified to the court that he did not seek reinstatement.

Advice for businesses

Employers should ensure that contracts of employment include a provision in respect of retirement with a clearly thought-out rationale for specifying the age.

Where no retirement age is specified and an employer seeks to rely on custom and practice, it will be difficult for the employer to defend a claim of discrimination if an employee can point to other employees who have remained in employment beyond that age.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

Christine West is a senior associate in the employment law and benefits team at Mason Hayes & Curran.

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