A recent ruling from the Equality Tribunal confirms that an employer must be able to objectively justify setting a retirement age to avoid a claim of age discrimination.
The complainant was employed as a motor mechanic from November 1989 until his employment was terminated in July 2008. The complainant claimed that he had been discriminated against on the grounds of age when he was denied access to training in the period before his dismissal and by dismissing him when he was 66. The Tribunal confirmed that termination of an employee’s employment solely on reaching a particular age constitutes direct discrimination on grounds of age contrary to Section 8 of the Employment Equality Acts.
The respondent sought to rely on Section 34(4) of the Employment Equalities Acts. Section 34(4) provides that it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsory) of employees or any class or description of employees. While accepting that it had no jurisdiction to disregard a provision in a statute or to correct a mistake the Tribunal said that in line with the interpretative obligation set out by the ECJ (as it then was) in Von Colson (Case C-14/83) and applied in this jurisdiction by the Supreme Court in Nathan v Bailey Gibson 1998 it was obliged to interpret the Acts in a manner that is harmonious and in line with the European Equality Directives. As a result the respondent had to satisfy the Tribunal that the approach it adopted in retiring the complainant was objectively and reasonably justified by a legitimate aim and the means of achieving that aim where appropriate and necessary. The respondent argued that the legitimate aim sought to be achieved by was to protect the employee’s health and safety and that of his colleagues. The Tribunal rejected this argument and ordered the respondent to pay the complainant €30,000 by way of compensation for the distress consequent upon the discrimination and as such the award was not subject to PAYE/PRSI.