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.
Overview
Age discrimination has been prohibited in Ireland since October 1999, when the Employment Equality Acts 1998 to 2015 (”the EEAs”) came into force. The EEAs 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 EEAs also prohibit victimisation, where a person is dismissed or adversely treated for having made a complaint of discrimination or otherwise pursued their rights under the EEAs.
Who's covered?
The EEAs apply 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 EEAs only apply 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 (the WRC)
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 EEAs
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 2022, 14% of the claims to the WRC in 2022 were under the EEAs 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 age related discrimination claims continue to be most common.
The increase in the number of individuals seeking to continue working beyond the employer’s normal retirement age has been more prevalent recently as the fears associated with Covid 19 have subsided and concerns about cost of living have increased. Others reasons for this increase include the age at which individuals qualify for State pension is due to increase (currently it is 66 years of age but is likely to increase further in coming years), and the impact of rising inflation on individuals’ pensions and savings.
Some recent surveys indicate that ageism in the workplace remains an issue generally, with concerns that those over the age of 50 are offered fewer work opportunities than younger people, and that those over 50 find it more difficult to move jobs.
However, the trickiest issue for employers here continues to be their ability to justify mandatory retirement ages, because the objective 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 EEAs 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 EEAs.
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.
Recent Cases
A number of recent cases have highlighted the difficulties faced by employers when any decision based on age is subjected to challenge, in Patrick McInerney v Irish Wheelchair Association [2023] (ADJ-00032186), the employer was ordered by the Workplace Relations Commission to pay €31,830 to Mr McInerney after retiring him at the age of 66 without objective justification. In that case, the employer had relied on the terms of the contract of employment only, without being able to show any objective justification for the dismissal.
In Michael O’Mahony v University of Limerick [2023] (ADJ-00031897), Mr O’Mahony, a student counsellor, was awarded €50,000 after he was retired without objective justification. This case followed a dispute over the employment status of a group of student counsellors following inquiries by the Revenue Commissioners and the Scope section of the Department of Social Protection in 2018, which led to the complainant being put on payroll the following year. HR staff in the university told him in September 2019 that he would have to retire within a fortnight as he was over 65, which was the public service retirement age for staff who started before 2004.
After discussions between the University and his solicitor, Mr O’Mahony understood he would be allowed to keep working and expected to stay on until he reached the age of 70 - but he subsequently received notice of termination while on certified sick leave in January 2021 at the age of 68.
The University’s case was that in retiring Mr O’Mahony, it was simply carrying out the legal requirements of the Civil Service Regulations Act 1956. The Adjudication Officer noted that it was "well established that the imposition of a mandatory retirement age is discriminatory" and that the University had offered "no evidence" that it had been required to do so under the Civil Service Regulation Act 1956, as it had claimed. She noted that Mr O’Mahony was “fully capable of undertaking the work. He did so for years after the age of 65 and continues to do so in private practice at the age of 70."
In A Senior Staff Nurse v A Nursing Home (In Liquidation) [2021] (ADJ-00027325), a maximum award was granted to an employee forced to retire at 65. The Adjudication Officer noted that while the employee's employment had been initially extended by a one-year, fixed-term contract (FTC), there was no objective justification for requiring the employee to enter the FTC instead of continuing her employment on her employment contract which pre-dated the mandatory retirement age. In addition, the employer did not meaningfully engage with the employee as required by the Code of Practice on Longer Working when she requested to work beyond the expiry of the FTC. There was also no objective justification for the termination of the employee's employment on the expiry of the FTC. It is important to note from this case that contracts extending employment beyond the mandatory retirement age, as well as mandatory retirement ages themselves, may fall foul of the EEAs unless they are objectively and reasonably justified by a legitimate aim and the means of achieving that aim are necessary and appropriate.In Brendan Beirne v Rosderra Irish Meats Group [2023](ADJ-00027036), the employer was ordered to pay Mr Beirne €30,000 for forcing him to retire at age 65.
Mr Beirne was a general operative on a production line that had a standard manning of 5 operatives. In June 2019, Mr Beirne told his manager that he was seeking to work beyond his 65th birthday in August 2019 and was aware of other employees who had been afforded this facility. When this request was denied he made a complaint of age discrimination.
In this case, the Adjudication Officer (‘AO’) noted that it is a key requirement that the employer can identify a contractual retirement policy within the organisation. He was satisfied that, based on evidence given at the hearing, both the signed contract of employment, and the collective agreement, specified the retirement age of 65. Therefore, this requirement was met.
At the hearing, the employer detailed various objective grounds for retirement at 65 as follows: ensuring the health and safety of the workforce and of those persons utilising the organisation’s services; ensuring consistency among all employees in relation to retirement; to create certainty in succession planning; to ensure cohesion in the workforce; to ensure a uniform retirement age; to ensure that there was an age balance in the workforce and; to free up jobs so that younger workers could enter to the workforce and have an opportunity for advancement/promotion.
However, the AO noted that there was no evidence that these reasons were put to Mr Beirne at any stage. The AO noted that “Neither the examples of legitimate aims determined by the courts, nor those detailed by the Respondent, can be considered as generic justification for refusing all requests to work past the normal retirement age. Otherwise, the intention of the social policy in relation to longer working would be rendered meaningless. In my view there is an obligation on the employer to present the employee making the request to work longer with the specific objective grounds why his or her request is being refused. The employee should have the opportunity to test these arguments before a final decision is made. There is no evidence in this case that the objective grounds, now being put forward by the respondent, were presented to the complainant in advance of the decision to refuse his request to work longer. The respondent, in the communications, relied exclusively on the enabling clause in the contract and in the collective agreement.” On that basis, the AO found that he had been discriminated against.
Despite the difficulties outlined above, there have also been cases where employers have successfully been able to objectively justify compulsory retirement ages.
In Judy Bamford v Citizen's Information Phone Service Limited [2019] (ADJ-00017442), the Adjudication Officer found that that the respondent employer had satisfied the criteria in section 34(4) of the Equality Acts and had objectively justified its compulsory retirement age as Ms Bamford’s contract of employment made express provision for a compulsory retirement age and that "this was designed to encourage high retention rate by creating opportunities for promotion – it creates intergenerational fairness – it ensures the renewal of the employment teams".
In Pat O’Donnell & Company v Denis O’Keeffe [2021] (EDA2133), the Labour Court found in favour of the employer’s mandatory retirement age for service engineers. The employer provided evidence that the role was a safety critical one. In addition, the alternative to a mandatory retirement age would be to require employees to undergo medical examinations which could result in their employment coming to an abrupt end and could undermine their dignity at work.
The employer also provided evidence that a mandatory retirement age was necessary for succession planning as it takes six years to train an individual from apprenticeship to the required skillset of a service engineer and that their recruitment schedule aligned with the retirement dates of exiting employees.
In these circumstances, the Labour Court found that the employer had a legitimate aim to ensure a through flow of appropriately qualified service engineers and to ensure that employees are not required to continue working until they are unable to perform the duties.
Objective justification
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 Practiceon Longer Working 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.
The Code of Practice is not legally binding but, as can be seen from some of the cases referred to above, continues to be persuasive in any retirement age challenges.
Past case law, (as outlined above), is also indicative of what could be a successful objective justification.
In addition, the IHREC (the Irish Human Rights and Equality Commission) has guidelines for employers and employees, called the “Retirement and Fixed-Term Contracts Guidelines”. These include guidance on offering employees who are approaching the mandatory retirement age, an FTC, and seek to ensure that older workers, who wish to continue in employment, are not discriminated against in Irish workplaces.
Other recent developments
The Irish Government is taking steps to increase the participation of older workers in the labour market.
In its 'Pathways to Work Strategy 2021-2025', it sets out various ways it plans to do so and encourages businesses to embrace older workers and make better efforts to retain and retrain them.