EDA2633

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00052442 (CA-00064157-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 03/03/2025. Labour Court hearings took place on 04/06/2026.

The following is the Determination of the Court:

DETERMINATION:

Background

1. This is an appeal by Eugene McEnery (“the Complainant”) against the Decision of an Adjudication Officer (ADJ-00052442, CA-00064157-001 - dated 12 February 2025) in relation to a complaint about his former employer, Partners in Logistics Ltd (“the Respondent”), under the Employment Equality Act, 1998 - 2021 (“The Act”). The Adjudication Officer held that the Complainant was not subject to discriminatory treatment on the age or gender ground.
2. A Notice of Appeal was received by the Labour Court on 3 March 2025. The Court heard the appeal in Limerick on 4 June 2026. Written and verbal submissions were made by both parties and the Court heard witness testimony from the Complainant and the Operations Director with the company.

Factual matrix

3. The Complainant commenced employment on 1 January 2003 as a Warehouse Operative. His contract of employment stipulates a retirement age of 65 years. In advance of his 65th birthday on 4 December 2023, the Complainant requested to extend his employment beyond the age of 65. The Respondent agreed to an extension of the Complainant’s employment beyond his retirement date. In April 2024, the Respondent notified the Complainant that his employment would terminate in line with his contract of employment on 14 June 2024. His employment ended on 14 June 2024.
4. The only matter progressed on appeal by the Complainant was a complaint of discriminatory treatment on the age ground. The Complainant submits that he was subjected to discriminatory treatment by the Respondent on the grounds of his age when he was forced to retire six months after reaching the age of 65. The Respondent refutes that the Complainant was subject to discriminatory treatment on the age ground.

Summary of Complainant’s Case:

5. The Complainant held the position of Warehouse Operator. He was aware that there was an expectation among colleagues that he would retire upon reaching 65 years of age. In advance of his 65th birthday on 4 December 2023, the Complainant requested an employment extension and was allowed to continue working after reaching the age of 65. No other colleague had retired upon reaching 65 years. There was no occupational pension scheme in place in the company.
6. In April 2024, the Complainant was approached by management and told that he had to either retire or move to a 3-day working week. He did not wish to move to a 3-day working week, which would have reduced his income by 40%. He replied to say that he had no wish to retire for the foreseeable future and noted that the 2017 Code of Practice on Longer Working and Employment Equality Act prohibits discrimination on the age ground.
7. On 23 April 2024, the Complainant was told that his employment would terminate with eight weeks’ notice and that he could choose to work out his notice or be paid in lieu of that notice. After the meeting, the Complainant received unagreed minutes which incorrectly stated that he had agreed that some duties were not suitable for him, given the physical nature of the work. On 30 April 2024 the Respondent replied to various issues raised by the Complainant and to confirm that his employment would end on 14 June 2024. He chose not to work his 8 weeks’ notice.
8. On 2 May 2024, the Complainant replied to the letter of 30 April 2024 and refuted the allegation that he had excluded himself from the performance of certain tasks within the warehouse. The Complainant did not receive any further communication from the company.
9. The Complainant submits that the “retirement age of 65” was not an established retirement age. Other employees continued to work beyond 65 years of age and were not forced to opt for a three-day working week or retire upon reaching 65 years of age. This precedent demonstrated there's no established retirement age when an employee reaches 65 years of age.
10. The Complainant submits that there was no evidence of a legitimate aim or objective justification for a mandatory retirement age. In terms of workforce planning, there are increases and decreases in the workforce on a continuous basis. Spikes in demand are met through the recruitment of fixed term employees. The Complainant performed his role diligently and in full. The Company had no issue with his performance. The Complainant refutes that he excluded himself from performing certain tasks within the warehouse on health and safety grounds. The proposal that he move to a three-day working week was not the action of a reasonable employer. The Complainant was refused an appeal of the decision to terminate his employment.

Summary of Respondent’s Case:

11. The Respondent’s retirement policy stipulates a retirement age of 65, as stated in the Complainant’s Contract of Employment. As the Complainant approached the age of 65, the Respondent initiated discussions with him to explore options.  The Respondent agreed to a temporary extension of the Complainant’s employment, on the explicit understanding that the Complainant had reached the company's retirement age of 65 and that this extension was exceptional. The Complainant accepted this arrangement at the time.
12. The Complainant had previously requested to be moved from warehouse work to other duties due to his medical condition as his symptoms worsened in a cold environment. During a review of the temporary extension, the Complainant requested a three-day working week arrangement. The Respondent was agreeable to that request. The Complainant then advised that he did not wish to work a three-day week.
13. The nature of the Respondent’s business in the logistics sector involves physically demanding tasks. The warehouse operator role is physically demanding. The Complainant acknowledged that he could not undertake the full range of physical duties typically performed by warehouse operatives. Due to health and safety concerns, the Complainant had voluntarily refrained from undertaking certain manual duties within the warehouse. The Respondent took into account the health and safety risks associated with the Complainant’s role when considering the extension of his employment. The Respondent accommodated his medical condition by assigning him to work within a heated area.
14. The company relocated to a smaller warehouse, which led to a scaling down of operations. The work carried out by the Complainant could no longer be accommodated in the new location. The Respondent made genuine efforts to explore alternative duties suitable for the Complainant’s abilities and limitations. The Complainant declined to engage with the request to identify specific tasks or roles that he was prepared to perform, which made it difficult to assess alternative arrangements that align with the operational needs of the business and his health requirements.
15. The Complainant was not subjected to any form of discrimination contrary to the provisions of the Employment Equality Act 1998. The Respondent treated the Complainant fairly and in accordance with the relevant legislation, internal policies, and best practices.
16. The Act provides, under section 34(4), that an employer may take particular actions where they are objectively justified by a legitimate aim. In this case, the Respondent relied upon the legitimate aim of ensuring the efficient and fair operation of the business, ensuring workplace safety and maintaining appropriate standards for all employees. The actions taken were proportionate and necessary to achieve those aims.
17. Any alleged difference in treatment experienced by the Complainant was not discriminatory but instead was based on legitimate business-related considerations that were necessary for the proper functioning of the workplace. The difference in treatment, if any, was proportionate to the objective pursued and in compliance with the provisions of the Act.
18. The Respondent refutes the proposition that no other employees retired on reaching 65. Each employee, upon reaching the retirement age and upon request for an extension of employment is assessed on an individual basis. The factors taken into account include personal factors, position held within the company, health and safety issues and the Company's succession plans.
19. The Respondent maintains a strong commitment to fostering an inclusive and equitable workplace. All employment policies and procedures are regularly reviewed to ensure compliance with the Act and extensive measures are in place to prevent and address any potential discriminatory behaviour. The Respondent provides access to an occupational pension scheme and refutes the proposition that it did not provide the Complainant with an opportunity to receive any pre-retirement advice. At all times, the Respondent took reasonable steps to ensure that no discrimination occurred and that any decisions regarding the Complainant were based on legitimate, lawful considerations.

Testimony

20. The Court heard witness testimony from the Complainant and from Mr. John Morrissey, Operations Director,

Evidence of the Complainant

21. When the Complainant first commenced employment, he worked in the office preparing shipments. He later moved to the warehouse, where he drove forklifts. About seven or eight years before his employment ended, he moved to the Kitting area, adjacent to the warehouse. He never asked to be moved. He never found out why he was moved and had never asked. The job was a manual job, and he worked with heavy materials. He was trained in manual handling and had no difficulties with the job.
22. The Complainant suffers from a medical condition which can make his hands very cold. He wears gloves at work. He is not unfit for work. He had attended the company doctor several years previously and was deemed fit to return to work at that time.
23. In 2023, he met with the warehouse manager to say that he was not ready to retire. He was told to put the request in writing, which he did. He then met with the Warehouse Manager and Operations Director to discuss the request. He was given an extension. It was not set down in writing. There was no timeframe on the extension or conditions attached. He was not asked to attend the company doctor.
24. In April 2024, the Complainant attended a meeting, where management suggested that he work a 3-day week. His representative was not allowed attend. He decided against that option, as he had always worked full-time hours. He thought the extension would be for one year, as others were given one-year extensions. There were at least two others who had worked past 65, Ms A and Ms B. Another employee, Mr X, retired in 2026 and had worked until age 70. He was told that he had to work a three-day week or else retire. He was given eight weeks’ notice.
25. Under cross examination, the Complainant accepted that his contract of employment cited a mandatory retirement age of 65. He accepted that he was treated well during his employment. He said that the only difference in his treatment was when his employment ended.
26. The Complainant disputed that his work environment was dangerous. He no longer worked in the warehouse by that time. He did not see his medical condition as a risk and was certified to carry out the work. It was a manual job, and he worked with heavy materials. He never refused work. He wore gloves and was fine.  He passed his forklift tests in January 2024. He could not recall if he had suggested the option of working a 3-day week first.When the Operations Director sought suggestions about where he could work, the Complaining suggested the Kitting Department or Kemp area. Both are heated.
27. The Complainant disputed the minutes of the meeting in April 2024, which refers to a discussion about health and safety. He never raised any concerns about health and safety and was capable of doing any job. He did not reply to the letter which invited him to set out any grounds for an appeal of his termination.

Evidence of Mr. Morrissey – Operations Director

28. The normal retirement age in the company is 65 years, as per the company handbook and contracts of employment. The process for managing retirements is informal. The retirement age of 65 s not stuck to rigidly. Generally, management will have a discussion with an employee about their retirement plans. If the company has a role, it will accommodate who wants to stay.
29. The rationale for having a retirement age of 65 is due to the nature of the work in the warehouse, which is a very physically demanding job. The role requires extensive training. Operatives can work in the back of container for four hours at a time. They generally walk 20,000 to 30,000 steps a day. The company carries out risk assessments and has introduced measures to make things easier. The company looks at the overall age profile, as it needs to bring in younger people for succession planning. There is no relevant policy on retirement.  All employees have access to a PRSA, although it is not widely used. Only senior management have a pension scheme.
30. In October 2023, the Complainant approached the Warehouse Manager with a request to stay on working. The company was happy to accommodate that request on an open-ended basis.
31. Around early 2024, they lost a contract in the Kitting area where the Complainant worked. Mr Morrissey met with the Complainant and the other employee who worked in the Kitting area to let them know the contract was coming to an end and they would need to redeploy them to another area. As the other employee had IT skills, he was redeployed elsewhere. They needed to know what work the Complainant was comfortable to do, as they were aware of his medical condition. His only suggestion was to stay in the Kitting area or else work a three-day week. They considered his request to work a three-day week but still needed to know what tasks that he could do.
32. Mr Morrissey was aware of the Complainant’s medical issues from the Warehouse Manager. He never saw a medical report. While the Complainant’s evidence was that he could wear gloves, it was not possible for him to wear gloves in the warehouse when using the “man up” machines. A safety feature required that a person’s hand must be on the infra-red sensors.
33. The Complainant’s employment was terminated as there was no role for him and because of his health history. They discussed his health at meetings in April. He could not work in containers because the work was too physical and he could not work the forklift because of his hands. He did not have the right skills for office work. If they had not lost the contract the Complainant would have stayed working until aged 66. The Complainant initially suggested a 3-day week but later said he was not interested. The company tries to accommodate as many people as possible and tries to accommodate keeping people in employment up to age 66.
34. Mr Morrissey accepted that the termination letter did not mention the loss of contract as the reason for the termination. He was not sure why succession planning was mentioned in the letter. There was no process in place for appealing under the decision to retire the Complainant. If he decided to appeal the decision, that matter would have gone to the Managing Director.
35. He could not say why the Complainant was not given a fixed term contract. No timeframe was put on the extension, although age 66 is what he had in mind. He accepted that there is not a lot of difference between the ages of 65 and 66. No-one was ever refused a request to stay on working. Approximately, five other employees had stayed on past 65. Mr X was employed on a one-year rolling contract until age 70, as he had important skills.  Another individual, Ms A, was asked to return after she had left due to a spike in work.

The Law Applicable:

36. Section 6(1) of the Act provides, in relevant part, as follows: -

(a) “For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken 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 grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

…

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

Section 6(3(c) provides as follows:

Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if—

(i) it is objectively and reasonably justified by a legitimate aim, and

(iii) the means of achieving that aim are appropriate and necessary.

Section 34(4) of the Act provides for certain savings and exceptions relating to the family, age, and disability grounds. Subsection (4) of that Section provides: -

“Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if —

(i) it is objectively and reasonably justified by a legitimate aim, and

(ii) the means of achieving that aim are appropriate and necessary”.

Section 85A (1) of the Act provides: -

85A.— (1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.

Deliberations

37. The Complainant submits that he was subjected to discriminatory treatment by the Respondent on the grounds of his age when he was forced to retire six months after reaching the age of 65.
38. A compulsory retirement age is discriminatory on the age ground unless it can be brought within the limited exemptions provided in the Act which allow for differences of treatment in certain circumstances. The Act allows an employer to stipulate a fixed retirement age, where that age is objectively and reasonably justified by a legitimate aim. It is also permissible to offer an employee who is above retirement age, employment on a fixed-term contract, again where to do so is objectively and reasonably justified. Fixing a compulsory retirement age that goes beyond what is appropriate and necessary to obtain the legitimate aim pursued by the employer falls outside the exemptions provided for under the Act.
39. The burden of proof rests with the Respondent to show that discrimination has not occurred.

Was there a mandatory retirement age?

40. While the Complainant’s representative contends that there is no fixed retirement age in the employment, the Complainant’s contract of employment expressly provides for a mandatory retirement age. Clause 19 of the contract of employment states as follows: - “There is a mandatory retirement at the age of 65”.
41. The Complainant himself was fully aware that he was expected to retire upon reaching 65 years of age. Based on the submissions made and the evidence tendered, the Court is satisfied that there is a mandatory retirement age of 65 years in the employment.
42. The Complainant sought to remain working beyond his 65th birthday on 4 December 2023 and the Respondent acceded to that request. His employment was subsequently terminated on 16 June 2024.

Was the Complainant’s employment terminated on the grounds of his age?

43. On 30 April 2024, Mr Morrissey wrote to the Complainant to inform him that his employment would terminate in line with his contract of employment on 14 June 2024. The three-page letter which addressed several queries that the Complainant had raised about his employment situation, stated, inter alia, that: -

“…The Partners in Logistics retirement policy includes a retirement age of sixty-five. This is included in your contract of employment. It was accepted by you previously and we have made our succession plans accordingly…

…we engaged with you and agreed to accommodate you further on the strict understanding that you had reached the retirement age of 65, you accepted that it was the mandatory age, and that we were providing you with a temporary extension.

“…The company has no issue whatsoever with your performance. We are simply invoking the contractual retirement age of sixty-five in line with company policies and procedures so that we can have the appropriate succession plan in place for the future…

The termination of your employment is in line with the coming to an end of your Contract of Employment…

For the avoidance of doubt, your employment will terminate on 14 June 2024”.

44. It is evident from the above correspondence that the sole reason communicated to the Complainant for the termination of his employment was his age. Such an action by the Respondent is discriminatory unless it can be brought within the limited exemptions provided in the Act.

Did the termination of the Complainant’s employment fall within the ambit of section 34(4) of the Act?

45. Section 34(4) of the Act provides that it is not discriminatory for an employer to fix a retirement age in an employment if that retirement age is objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.
46. In this case, the Complainant sought to remain working beyond the mandatory retirement age when he reached 65 and the Respondent acceded to that request. The Respondent did not enforce the Complainant’s contractual obligation to retire on reaching 65 years. By waiving that contractual right, the Respondent waived its right to rely on that contractual clause. As a result, the Court finds that the limited exemption provided at section 34(4) is not applicable to the facts in this case. Accordingly, the Respondent cannot rely on that provision

Did the termination of the Complainant’s employment fall within the ambit of section 6(3) of the Act?

47. Section 6(3(c) of the Act provides a further limited exemption which allows an employer to treat an employee differently on the ground of age in certain circumstances. An employer may offer an employee who has reached a compulsory retirement age a fixed term contract where doing so is objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.
48. The availability of extensions to employment contracts beyond a mandatory retirement age can be an appropriate and proportionate means of implementing the mandatory rule that effectively balances competing considerations where an employee wishes to remain in the workforce for longer.
49. In this case, the Respondent agreed to extend the Complainant’s employment beyond his contractual retirement date. That agreement was not set down in writing. There was no timeframe on the extension or conditions attached. While Mr Morrissey’s evidence was that he had the Complainant’s 66th birthday in December 2025 in mind as an end date, nothing was committed to writing or agreed orally. The agreement between the parties to extend the Complainant’s employment was not underpinned by a fixed-term contract of employment with a specified start and finish date. The contract extension was open ended.
50. In the Court’s view the limited exemptions provided under the Act must be strictly construed. As the Complainant was not offered a fixed term contract, the Respondent does not come within the ambit of the exemption available under Section 6(3) of the Act. Accordingly, the Respondent cannot rely on that provision.
51. Mr Morrissey’s evidence was that the Complainant’s employment was terminated due to a downturn in work and due to the Complainant’s health history. Those reasons were not reflected in the letter of termination letter that issued to the Complainant.By letter dated 30 April 2024, the Respondent wrote to Complainant informing him that his employment would terminate in line with his contract of employment. The Respondent relied on the Complainant’s age as the ground to terminate his contract of employment. He was dismissed on the ground of his age.
52. Mr Morrissey’s evidence was that the Complainant’s medical history was a relevant factor in his considerations. Mr Morrissey accepted that he had no medical evidence to support that contention. The Complainant’s evidence was that he was fully fit to do that job. No evidence was presented to the Court to support the contention that any health and safety issues arose that prevented the redeployment of the Complainant to other areas within the workplace. Furthermore, the Respondent expressly stated that there were no performance issues.
53. It is clear from the evidence that the Respondent company tries to facilitate employees with working beyond the mandatory retirement age. Mr Morrissey’s evidence was that if the contact had not been lost the Complainant would have stayed working until aged 66. The Court accepts the evidence tendered by both parties that they had good working relations for most of the employment relationship. However, the defence offered by the Respondent does not rebut the inference that can be drawn from the facts of this case to the effect that the Complainant was treated less favourably on grounds of age when the Respondent enforced his retirement on the age ground on foot of a change in economic circumstances. 
54. Based on the submissions made and evidence tendered, the Court finds that the termination of the Complainant’s employment falls outside the ambit of the limited exemptions provided under the Act that allow for differences of treatment on the age ground in certain circumstances.
55. Having regard to the evidence before it, the Court finds that the Respondent terminated the Complainant’s employment following a downturn in business, due to his age. The Complainant’s retirement at age 65 is lower than the general pensionable age for the purposes of the State pension.

Finding:

56. For the reasons set out herein, the Court concludes that the enforced retirement of the Complainant on 14 June 2024 amounted to discrimination on the ground of his age. The Court finds that the complaint is well founded. The Court directs the Respondent to pay the Complainant compensation of €15,000.00. The Complainant’s appeal succeeds.  The Decision of the Adjudication Officer is set aside.

	Signed on behalf of the Labour Court
	Katie Connolly
AL	______________________
09/07/2026	Deputy Chairman

NOTE

Enquiries concerning this Determination should be in writing and addressed to Ms Amy Leonard, Court Secretary.