This summary of age discrimination law in Ireland has been prepared by Síobhra Rush, a Partner in Lewis Silkin's Employment, Immigration and Reward department based in the Dublin office.
Age discrimination has been prohibited in Ireland since October 1999, when the Employment Equality Acts 1998 to 2015 (”the EEA”) came into force. The EEA includes eight other grounds which are protected from discrimination, both direct and indirect, in relation to:
- access to employment,
- conditions of employment,
- training or experience for or in relation to employment,
- promotion or re-grading, or
- classification of posts.
Discrimination also includes situations in which a person is harassed or sexually harassed on any of the nine grounds.
Direct discrimination is deemed to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the nine protected grounds.
In accordance with EU law, indirect discrimination occurs where an apparently neutral provision puts (or would put) one person at a particular disadvantage due to one of the protected grounds, compares with another. Indirect discrimination can be objectively justified by a legitimate aim, where the means of achieving that aim are appropriate and necessary.
The EEA also prohibits victimisation, where a person is dismissed or adversely treated for having made a complaint of discrimination or otherwise pursued their rights under the EEA.
The EEA applies to various category of persons and employers/organisations.
The following categories of persons are protected by the Acts:
- full-time, part-time and temporary workers whether working for the public sector, or private companies;
- organisations which provide training for job skills (for example, vocational training);
- employment agencies;
- trade unions;
- professional and trade bodies;
- self-employed contractors;
- partners in partnerships; and
- office-holders in State organisations and local authorities.
However, in relation to age discrimination, the protection of the EEA only applies to persons who are above the maximum age at which they must attend school (which is currently 16) and do not apply to Members of the Defence Forces and volunteers. Employers are permitted to set a minimum age (of no more than 18) for recruitment to a post.
What enforcement/remedies exist?
A claim of age discrimination may be made to the Workplace Relations Commission which is the body established to deal with all statutory employment claims in 2015 (and took over the remit of the former Equality Tribunal).
The WRC will deal with the claim, either through (1) Mediation; and/or (2) Adjudication.
The WRC will decide whether or not a case is appropriate for mediation, and if it decides that this is the case, may offer mediation to both sides. Mediation is a voluntary process, and will only take place where both sides agree to participate. Evidence of mediation, or any matters discussed during mediation cannot be used in subsequent court proceedings. However, if agreement is reached which resolves the claim, then it will be reduced to writing and will constitute a binding and enforceable agreement between the parties.
If the claim is not suitable for mediation or cannot be resolved through mediation, an Adjudication Officer (‘AO’) will be appointed to investigate the complaint and make a decision. This will involve written submissions being made in advance and both parties attending a hearing (with witnesses) at which oral evidence is given. The AO’s decision is legally binding, but can be appealed to the Labour Court.
Redress/remedies which may be ordered under the Acts
An Adjudication Officer can award the following:
- an order for compensation of up to two years’ remuneration to existing employees:
- an order for compensation of up to €13,000 to non-employees (eg applicants for employment who are discriminated against);
- an order for equal treatment in whatever respect is relevant to the case;
- an order that a person/persons specified take a specified course of action;
- an order for re-instatement or re-engagement, with or without compensation.
If the claim is one for equal pay, the compensation awarded by the AO may take the form of arrears of remuneration (attributable to a failure to provide equal remuneration) for up to three years prior to the date of referral of the claim.
How common are claims?
According to the WRC Annual report for 2017, 11% of the claims to the WRC in 2017 were under the Employment Equality Acts and of that, approximately 24% included the age ground. However, it should be noted that in most cases, more than one ground was included in each claim so it is difficult to establish whether age was the dominant ground in those claims. Gender is the ground most frequently included in employment equality claims.
What age discrimination claims are the most common and what are the trickiest issues for employers?
Currently, and over the past year, retirement and promotion are the most current issues.
The trickiest issue for employers is being able to justify retirement ages, because the justification must be relevant to the time that it is set, and it’s a very high bar for employers to reach.
Are there specific exceptions in your laws?
It is not discriminatory for an employer to offer a fixed term contract to a person who is over the compulsory retirement age for that employment, provided that it is objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.
There are some exclusions contained in the EEA which would cover age discrimination:
- vocational training bodies are permitted to offer assistance to particular categories of persons by way of sponsorship, scholarships, bursaries or other awards, but only to the extent that the assistance is reasonably justifiable having regard to traditional or historical considerations; and,
- different treatment is allowed by universities or other third level institutions in relation to the allocation of places for mature students.
As mentioned above, employers can set 18 as a minimum age for recruitment.
Further specific exceptions are set out in s34 of the EEA.
For instance, in an “occupational benefits scheme”, it is not discrimination on the age ground where an employer—
- fixes ages for admission to the scheme, or for entitlement to benefits under it,
- fixes different ages for all employees or a category of employees,
- uses, age criteria in actuarial calculations for the scheme, or
- provides different rates of severance payment for different employees or groups of employees, which are based on, or take into account the period between the age of an employee on leaving the employment and his or her compulsory retirement age, provided that doing this does not constitute discrimination on the gender ground.
An occupational benefits scheme includes a scheme which provides benefits for employees on redundancy or sickness but does not include an occupational pension scheme which provides for pensions, or other gratuities payable on retirement or death.
Employers can also:
- set a retirement age, (which must be objectively and reasonably justified by a legitimate aim, and the means of achieving this aim must be appropriate and necessary);
- set a maximum age for recruitment which takes account of (a) any cost or period of time involved in training a recruit (to an effective standard) and (b) the need for there to be a reasonable period of time prior to retirement age during which the recruit will be effective in that job.
- set different rates of remuneration, or different terms and conditions of employment, based on relative seniority (or length of service in a particular post or employment)if the difference is based on their relative seniority (or length of service) in a particular post or employment.
Two high-profile cases have highlighted the difficulties faced by employers when any decision based on age is subjected to challenge.
In the case of Dr Anne Cleary v University College Dublin (DEC-E2018-009)
Ms Cleary, a lecturer at UCD, was found to have been discriminated against on the basis of age in respect of access to a promotion. She claimed she had been passed over for the promotion when a senior position was given to an academic 20 years her junior (she was 61 at the time).
Upholding the age discrimination claim, the Adjudication Officer stated in the determination that “most notably not a single of the four candidates in the 60-65 age group, to whom the claimant belongs, was promoted”. Ms. Cleary was awarded €30,000 and UCD was ordered to promote her retrospectively from February 2015 (which was over three years earlier). The Adjudication Officer also ordered that she be paid the difference in salary and benefits that should have accrued.
In the second case, Valerie Cox v RTÉ, (ADJ-00006972) the employer claimed it had considerable interest in “ensuring the progress of younger members of staff and for the rotation of staff”, and argued that the retirement age of 65 applied to Ms Cox and was contained within the employee handbook. The Adjudication Officer ruled that there was no compulsory retirement age of 65 in either the contract of employment or the handbook. RTÉ had sought to retire Ms Cox when she reached that age, which was found to be discriminatory because it had failed to objectively justify the particular retirement age.
Ms Cox was subsequently awarded €50,000 by the WRC, which took the further step of reinstating her to her position. It does not appear that RTÉ will be appealing the decision.
In one recent case, the employer was able to objectively justify its compulsory retirement age for dockers. The Labour Court found that a retirement age of 65 was reasonable and proportionate. The company had submitted, inter alia, that the retirement age was set at an age at which a person's capacity to undertake the arduous work of a docker was becoming compromised. It also facilitated the efficient planning of the departure and recruitment of staff. In that regard, the company further submitted that it was necessary for the efficient operation of the business in that it ensured “a mix of generations of staff so as to promote the exchange of experience and new ideas” within an area of operation which was essential to the survival of the business. (Irish Ferries Ltd v McDermott EDA 31/2016)
As stated above, if a business has a compulsory or mandated retirement age – or, indeed, any age-based practices that could amount to age discrimination - these may still be lawful if objectively justified. A policy or practice will be objectively justified if it is a proportionate means of achieving a legitimate aim.
Legitimate aims may include outcomes that are generally positive or in the public interest, but the policy or practice must also be proportionate. This means there should not be a less discriminatory means of achieving the desired aim.
The WRC Code of Practice sets out some examples of what may be accepted as legitimate aims that could justify setting a particular retirement age. This is not an exhaustive list and any reason relied on must be bespoke to the organisation/industry to which the retirement age is being applied. The examples include:
- Progression of younger employees in the organisation
- Promotion prospects to motivate employees
- Health and safety reasons
- Ensuring a balance of ages across an organisation
- Succession planning
- Dignity around potential capability issues that could arise with older workers.
Other recent developments
A Code of Practice (on Longer Working) was introduced late last year by the Workplace Relations Commission (“WRC”) with a view to assisting employers with how to handle requests from employees seeking to work longer than their compulsory retirement age. The Code of Practice is not legally binding, but will be persuasive in any retirement age challenges.
In addition, the IHREC (the Irish Human Rights and Equality Commission) has also published guidelines for employers and employees, called the “Retirement and Fixed-Term Contracts Guidelines”. These seek to ensure that older workers, who wish to continue in employment, are not discriminated against in Irish workplaces