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In our recent briefing, Mandatory Retirement: Age discrimination or legitimate workplace policy? we set out in detail what you need to know regarding the law on mandatory retirement. Following on from that, the Supreme Court has now issued its judgment in the case of Mallon -v- Minister for Justice and Ors. The judgment clarifies key points concerning the law on mandatory retirement.
What happened in the case?
In 1987, Mr. Mallon was appointment Revenue Sheriff. The Court Officers Act 1945 provides that the retirement age for sheriffs is 70 years. Mr. Mallon reached the age of 70 in May 2022. During his appointment he continued in private practice as a solicitor and as noted by the Supreme Court, since his retirement as Sheriff, is once again free to devote himself full time to his profession, should he wish to do so.
Mr. Mallon brought judicial review proceedings challenging the lawfulness of the mandatory retirement age. He contended it was discriminatory on the grounds of age and that there were no, or no sufficient, objective and reasonable grounds to justify it.
What did the High Court decide?
The High Court was of the view that there was no doubt the mandatory retirement age for sheriffs constituted age discrimination, unless it could be objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
The High Court found that the adoption of a standard retirement age of 70 was for the legitimate aims of planning at the level of the individual and at the level of the organisation, the creation of an age balance in the workforce, personal and professional dignity, intergenerational fairness, and standardising the retirement age in the public service. Phelan J commented:
“..I accept that the fixing of a mandatory retirement age is effective in achieving intergenerational fairness and avoids difficulties within the workforce occasioned by help and capacity issues more prevalent in old age. I am satisfied that where the mandatory retirement age is fixed at 70 years of age generally and keeps ahead of the State pension age, a proper balance is maintained between competing interests.”
As such, the High Court ruled the retirement age was justified by legitimate aims and not discriminatory.
What did the Supreme Court decide?
The Supreme Court granted Mr. Mallon leave to bring a “leapfrog” appeal (bypassing the Court of Appeal) due to the general public importance of this case.
In upholding the judgment of the High Court, the Supreme Court commented that a significant factor in assessing whether a mandatory retirement age is “appropriate and necessary” is the financial impact on the persons involved and whether it will result in undue hardship to them; whether they will, on retirement, be entitled to an adequate pension, is an important consideration. Whether people subject to mandatory retirement may continue in their position on a short-term basis (for example on a fixed term contract) or are free to pursue other employment or whether they are forced to withdraw definitively from the labour market is also relevant.
A particular point of focus was Mr. Mallon’s contention that a blanket mandatory retirement age will not be justifiable where individual assessment is possible. The Supreme Court disagreed and stated “Nothing in the CJEU jurisprudence suggests that an employer is required to justify the application of a general retirement rule to an individual employee. Such a requirement would, of course, substantially negate the benefit of having such a rule in the first place”. The Supreme Court commented that it may be that different considerations apply in the context of lower than normal retirement ages specific to a particular occupation (such as airline pilots), but this is not such a case.
At 70, the mandatory retirement age in this case was higher than that applied in many workplaces and the Supreme Court commented that it is difficult to identify any circumstances in which a retirement age of 70 might currently be said to be disproportionate. Such a retirement age is higher, and in many cases significantly higher, than the thresholds for mandatory retirement considered without criticism or condemnation by the CJEU. The Supreme Court commented that 70 is considerably higher than the current “pensionable age” of 66 for the purposes of entitlement to a pension under the Social Welfare Consolidation Act 2005 and that is a significant factor having regard to the CJEU jurisprudence.
What does this mean for employers?
The case reinforces the law on mandatory retirement, as outlined in our previous briefing.
The Supreme Court’s comments referencing the “pensionable age” of 66 are noteworthy. As outlined in our previous briefing, new law is due to prohibit an employer from enforcing retirement below the age of 66. Notwithstanding the introduction of new law, having a mandatory retirement age of 66 or above may prove easier to justify in the event of a challenge.
When setting a mandatory retirement age employers should bear in mind the Supreme Court’s comments surrounding financial hardship and consider the financial implications for the employees involved.
The Supreme Court’s judgment provides welcome clarity for employers, with regard to there being no general requirement for individual assessment in order for a mandatory retirement age to be lawful pursuant to the Employment Equality Acts.
For further information in relation to this topic, please contact Triona Sugrue, Knowledge Consultant, or any member of ALG's Employment Law team.
