1. Introduction
Age discrimination claims under Section 6(2)(f) of the Employment Equality Acts 1998 to 2021 have become increasingly significant as the Irish workforce ages. Claims typically arise in recruitment, in promotion decisions, in compulsory retirement situations, and in selection for redundancy.
This article sets out the framework for age discrimination claims, the operation of the objective justification defence under Section 34, the particular issues that arise in compulsory retirement cases, and the WRC Code of Practice on Longer Working.
2. Legislation and Case Law
Section 6(1) of the Employment Equality Act 1998 (as amended) prohibits discrimination on any of the nine protected grounds: gender, civil status, family status, sexual orientation, religion, age, disability, race, and membership of the Traveller community. Section 6(2) of the Act sets out the protected grounds in full. Section 8 of the Act applies the prohibition to all aspects of the employment relationship including access to employment, conditions of employment, training, promotion and dismissal. Section 14A of the Act prohibits harassment and sexual harassment on any protected ground. Section 74 of the Act prohibits victimisation. Section 85A(1) provides that where, in any proceedings, facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination, it is for the respondent to prove the contrary. The leading authority on Section 85A is the Labour Court’s determination in Southern Health Board v Mitchell [2001] ELR 201, in which the Court held that the complainant must, in the first instance, establish a prima facie case of discrimination before the burden shifts to the respondent.
Section 6(2)(f) of the 1998 Acts identifies age as a protected ground. Section 6(3) of the 1998 Acts (as amended) prohibits age discrimination in employment.
Section 34(4) of the 1998 Acts permits an employer to set a compulsory retirement age provided that the retirement age is objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The legitimate aims that have been recognised include inter-generational fairness, workforce planning, and dignity in retirement.
The WRC Code of Practice on Longer Working (S.I. No. 600 of 2017) provides guidance on the management of retirement issues, including the consideration of requests for working beyond retirement age. While the Code is not binding, departure from it may be relevant to the WRC’s assessment of any complaint.
The Court of Justice of the European Union in cases including Förster v Federal Office for Migration (Case C-159/10) and the Irish case of Donnellan v Minister for Justice [2008] IEHC 467 have considered the application of the objective justification test. The legitimate aim must be of a public interest character; the means must be appropriate and necessary.
3. Decision
Age discrimination cases typically engage two distinct types of analysis. The first is in respect of direct discrimination: was the complainant treated less favourably by reference to age in a specific decision? The second is in respect of compulsory retirement: is the retirement age objectively justified?
In direct discrimination cases the Section 85A framework applies. The complainant must establish facts from which an inference of age-based discrimination may be drawn. Common evidential bases include patterns of recruitment or promotion decisions, statements about the employee’s age made during the relevant decision-making process, and the absence of any non-age-based explanation for the treatment.
In compulsory retirement cases the analysis focuses on the objective justification test. The employer must demonstrate the legitimate aim and the appropriateness and necessity of the means. A bare assertion that retirement is industry standard, or that the policy has always been applied, will not satisfy the test. Specific reasoning, tied to the operational characteristics of the role and the workforce, is required.
The Code of Practice on Longer Working is increasingly relevant in compulsory retirement cases. An employer who has refused, without engagement, a request for working beyond retirement age may be exposed to a claim regardless of the underlying validity of the retirement policy.
4. Takeaway
Age discrimination claims are a significant and growing category of employment equality litigation. The Section 34(4) objective justification framework provides employers with a basis for maintaining a compulsory retirement age, but the framework must be applied with rigour.
For employers, the practical advice is to maintain a clear retirement policy with documented objective justification, to engage with requests for working beyond retirement age in accordance with the Code of Practice on Longer Working, and to document the reasoning for any refusal.
Employers should also be alert to age-related issues in recruitment, promotion and redundancy selection. Decision-making processes should be evidence-based and documented, with reference to relevant skills and experience rather than to age-related assumptions.
For employees, the practical advice is to engage with the employer’s retirement processes, to make any request for working beyond retirement age in writing and in accordance with the Code, and to obtain legal advice early if adverse treatment by reference to age is suspected.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
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