The Equality Tribunal recently published its latest decision on the topical issue of age discrimination and compulsory retirement1.
In this case the employees were both over 70 years of age. The respondent claimed that they had exceeded the normal retirement age for the company and forced them to retire. The employees alleged that this amounted to discriminatory treatment on the grounds of age. The Tribunal rejected the respondent's reliance on an internal Circular which they claimed allowed them to retire the claimants upon reaching the age of 70. The Tribunal was not satisfied that this document fixed a retirement age as it was not sufficiently clear and cogent. The Tribunal was of the view that it did afford a defence to the respondents under section 34(4) of the Employment Equality Acts 1998 – 2011. Section 34(4) allows a respondent fix specific retirement ages for employees.
In this particular case, as no retirement age was fixed, the Tribunal looked directly to the provisions of the Framework Directive which permits discrimination on the grounds of age where it can be 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. The Tribunal found particular guidance on what might constitute "objective justification" in the case of Wolf v Stadt Frankfurt am Main2 notwithstanding the fact that this case concerned access to employment rather than forced retirement. Here it was accepted that an age limit could be imposed for recruitment to the role of fire-fighter as it was a job that was very physical in nature and the respondent had provided evidence that physical capability diminishes with age.
On foot of this evidence, the Court of Justice of the European Union accepted that various retirement ages for members of an organisation could be set depending on the demands of their rules. However it is apparent that such a justification test cannot be directed at the circumstances only of an individual complainant but rather must be based on clear policy grounds which relate to the needs and objectives of a particular organisation, including the specific mental and physical requirements of different roles, within the organisation. Applying these criteria to the case at hand, the Tribunal found that the respondent did not provide any evidence of this and according held that the complainants' retirement amounted to discriminatory dismissal on the grounds of age.
Notwithstanding the fact that the compensation awarded in this case was relatively small, the case is important from the point of view of the further consideration by the Tribunal of what might be accepted as "objective justification" for the imposition of a compulsory retirement age.