Dismissal For Retirement Age

Author:Mr Stephen O'Sullivan
Profession:Stephen O'Sullivan, Barrister
 
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Litigating when an employee is dismissed on reaching retirement age

Section 34 of the Employment Equality Act 1998 (EEA) makes it not unlawful on the age ground for an employer to fix retirement age and there is no qualification in the Act as to what criteria the employer may use to fix retirement ages.

Similarly, section 2.1 of the Unfair Dismissal Act 1977 (UDA) excludes dismissal of an employee who has reached normal retirement age.

Much of the Irish case law concerns the question of whether the employee was dismissed on reaching a fixed retirement age. For instance in McCarthy v. Calor Teoranta 2008 ELR 42 the Labour Court held that the dismissal was discriminatory under the EEA on the basis that the claimant was dismissed at age 60 and the normal retirement age was found to be 65.

Under EU law it would be contrary to Directive 2000/78/EC (which forms the basis for age discrimination law in this jurisdiction) to dismiss for retirement age unless the requirements of either Article 2.5 or 6.1 are met :-

2.5 This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.

...

6.1 Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are 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...

There is an almost irrefutable argument that s.34.4, in not setting any conditions for the exemption for retirement age, is contrary to the Directive and the ECJ case law. This was flagged in McCarthy v. Calor Teoranta.

The Employment Equality (Amendment) (No 2) Bill 2012, proposes to amend the EEA to bring it in line with to ensure that they are consistent with the Directive 2000/78/EC but it has not been passed yet. It would require that the retirement age is necessary to achieve a legitimate aim, that the discriminatory effects of significantly outweighed by the importance and benefits of the legitimate aim and that the employer has no reasonable alternative but to require the employee to resign at 65.

The ECJ case...

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