The economic impact of the recession has seen employees having to work for longer and being unable to afford to retire until later. This has resulted in an increasing number of age discrimination claims in relation to the issue of compulsory retirement coming before the courts. Two recent cases from the Equality Tribunal have helped further cement the attitude of the Tribunal in this area.
The last number of years have seen the Equality Tribunal having to grapple with the interpretation of Section 34(4) of the Employment Equality Acts 1998 – 2011 which states that “it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees.” The upshot of this provision is that it allows employers to fix a retirement age. This absolute defence to a challenge on the age discrimination ground does not fit with Article 6 (1) of the grounding European Directive 2000/78/EC which states that “Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if … they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary”. It is this disparity between domestic and European law that has resulted in an increasing body of case law emerging from the Tribunal on the point.
In the recent case of Harte v Q Park Ireland Limited (DEC-E2012 – 119) the complainant’s age discrimination claim succeeded as he was forced to retire upon reaching 65. He was awarded €15,000 in compensation. The employer failed to provide any reasons that the discrimination suffered by the claimant served any legitimate purpose or aim.
In the case of Nolan v Quality Hotel, Oranmore now trading as Maldron Hotel, Galway (DEC -E2012 – 110) the Tribunal awarded €9,000 to a former kitchen assistant when it found that she had been discriminated against on the grounds of age when she was forced into compulsory retirement after her age (she was 68) came to her employer’s attention. The claimant was not aware that the employer had a mandatory retirement age as it was never brought to her attention. The employer also failed to offer any reasons justifying the imposition of a retirement age.
The above cases further copper fasten the approach of the Equality Tribunal in interpreting section 34(4) in line with the wording of the grounding Directive. The Tribunal is clear that it is not preventing employers fixing a retirement age, but where it does it requires the employer to justify it on a legitimate and objective basis. Although it did not arise in the above mentioned cases as the employers failed to advance arguments on objective and reasonable justification, the determination of what constitutes such justification is another difficult issue for the Tribunal.