The Equality (Miscellaneous Provisions) Act 2015 came into operation on 1 January 2016. It amends certain provisions of the Employment Equality Acts 1998-2011 (“The EE Acts”). Until this point, the conflict between the EE Acts and the Directive in relation to compulsory retirement ages has been confusing for employers. However, the enactment of the Equality (Miscellaneous Provisions) Act 2015 finally brings the EE Acts into line with the Directive. The amendment still allows an employer to set a compulsory retirement age but only if it can be objectively justified. This applies regardless of whether or not the employer is a state body or a private company.
Section 34 of the EE Acts lists certain exceptions to discrimination, including one which provided that it did not constitute discrimination on the ground of age for employers to fix different ages for the retirement of employees. This exception was completely at odds with the provisions of the Framework Directive 2000/78/EC (the “Directive”). In particular, Article 6 of the Directive which states that any differences in treatment on the ground of age must be objectively and reasonably justified.
Although there was no requirement to justify retirement ages under the EE Acts, the Equality Tribunal had interpreted the EE Acts in line with Article 6 of the Directive and the case law of the Court of Justice, particularly where the employer was a state body.
However in John Goss v Ryanair Limited  the Equality Tribunal departed from this approach. It held that Section 34(4) of the EE Acts specifically provides for the setting of different retirement ages and despite many amendments, it was still silent in relation to the requirements as set out in Article 6 that an employer needed to objectively justify a compulsory retirement age. It concluded that even if the Directive placed an obligation on state bodies to objectively justify a compulsory retirement age it did not place any such obligation on a private company.
The Impact on Employers
In light of the recent resolution to this conflict, employers should:
- Specify a retirement age in the contract of employment.
- Provide that the retirement age may be reviewed and amended as that employee progresses through the organisation and the needs of the business change.
- Consult with that employee when they are approaching retirement age so that that they are aware and informed of the retirement age which applies to their employment.
- Be in a position to objectively justify the retirement age of that particular employee. This might include such legitimate aims as the physical demands and requirements of the role and the promotion of access to employment for younger employees.