EDA2634

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00051189 (CA-00062695).

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 19 February 2025.

A Labour Court hearing took place on 11 March 2026.

The following is the Determination of the Court:

DETERMINATION:

Background

1. This is an appeal by Pauline Walsh (“the Complainant”) against the Decision of an Adjudication Officer (ADJ-00051189, CA-00062695-001 - dated 20 January 2025) in relation to a complaint made by her about her former employer, Bausch Health Ireland Limited (“the Respondent”), under the Employment Equality Act, 1998 - 2021 (“The Act”).
2. The Adjudication Officer held that the Complainant had not established a prima facie case of discrimination from which it could be inferred that she was subject to discriminatory treatment on the age ground.
3. A Notice of Appeal was received by the Labour Court on 19 February 2025. The Court heard the appeal in Waterford on 11 March 2026. Written and verbal submissions were made by both parties and the Court heard witness testimony from the Complainant, her shop steward and the HR director of the company.
4. The Court invited the parties to lodge supplementary legal submissions addressing the findings of the Supreme Court in Seamus Mallon -v- The Minister for Justice, Ireland, and the Attorney General [2024] IESC 20 to the facts in this case. Both parties lodged supplementary legal submissions after the hearing date and, in doing so, confirmed that had shared their respective submissions with the other side. The post-hearing submissions were confined to addressing the Mallon case only. An additional submission made by the Respondent addressing the Court’s jurisdiction to hear the appeal was not considered by the Court for the purposes of this determination, as it was not raised at the first instance WRC hearing or at the Labour Court appeal hearing

Factual matrix

5. The Complainant commenced employment in March 2002 as a General Production Operative and was due to retire on 1 March 2023 on reaching her 65th birthday. In advance of that date, the Complainant requested to work beyond her retirement date. The Respondent approved the request and granted the Complainant a post-retirement fixed term contract of one year’s duration, which commenced on 1 March 2023 and expired on 1 March 2024.
6. The Complainant requested an extension to the one-year fixed term contract in October 2023. The request was denied. The Complainant appealed that decision. An appeal hearing was held on 4 January 2024. By letter dated 10 January 2024, the Respondent notified the Complainant that it had decided not to grant her a second post-retirement fixed-term contract. The Complainant’s employment with the Respondent terminated on 1 March 2024.
7. The Complainant submits that she was subject to discriminatory treatment on the age ground, as she was dismissed on reaching her 66th birthday on the expiry of a fixed term contact that was not objectively justified, while another employee remained in employment up to age 67. The Complainant further submits that her dismissal was directly related to her age, whereas other fixed term contracts that were renewed were not related to age.
8. The Respondent refutes that the Complainant was subject to discriminatory treatment on the age ground.

Summary of the Complainant’s Case:

9. The Complainant was a highly skilled operator who worked on three shift patterns rotating days, evenings and nights. She enjoys good health and the work carried out by her is not physically demanding.
10. The Respondent cannot rely on a compulsory retirement age as an express or implied term of employment. It is accepted that the Respondent’s pension documentation contains the term “normal” retirement age, however, there is no compulsory retirement age. There was no express retirement term within the Complainant’s contract of employment. The Company union agreement is silent on retirement age.
11. While the Complainant’s initial request to remain in work was facilitated, her fixed term contract was not objectively justified, and no legitimate aim was proffered. When the Complainant sought a further extension of that fixed-term contract, there was no meaningful engagement by the Respondent. The Complainant relayed her mitigating circumstances and a recent ministerial announcement regarding working longer. The Respondent did not objectively justify the non-renewal of the post-retirement fixed term contract. Her appeal of that decision was also rejected.
12. The Respondent terminated the Complainant's employment on reaching her 66th birthday. The Complainant’s fixed term contract was not renewed solely due to her age. This is less favourable treatment on the age ground, amounting to direct discrimination, as the Respondent regularly issues fixed term contracts to younger employees, which are often renewed.
13. The Complainant’s employment was terminated while another employee, Mr M, was allowed remain in employment up to age 67. This less favourable treatment amounts to direct discrimination. Mr M succeeded in his complaint of age discrimination and, in that case, the Labour Court found an absence of supporting justification for refusing him a further fixed-term contract. The letter of refusal had the same wording as used in the within case. No supporting justification was given.
14. The Respondent cannot rely on exemptions allowed under the Act as a defence, as at no point did the Respondent objectively justify the reasons for their decision. Their only response was “expiry of contract”.
15. It is not sufficient for an employee to identify a legitimate which may in principle be capable of justifying the fixing of a compulsory retirement. 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 exemption provided for under the Acts. For an aim to be legitimate, it must correspond to social policy objectives related to employment policy, labour market or vocational training. The aim should correspond to a public interest rather than a purely private interests, such as cost reduction or improving competitiveness. While commercial and financial considerations may underpin employer policy with respect to fixing a compulsory retirement age, such considerations cannot constitute a legitimate aim.
16. The Code of Practice on Longer Working S.I. No 600 of 2017 specifies that a request from an employee to work longer than their contracted retirement age should be considered carefully, which entails an assessment of whether the retirement is justified on a legitimate and objective basis. Where a decision is made to refuse a request, the grounds for the decision should be set out and communicated to the employee.
17. The Supreme Court in Mallon held that individual assessments are not needed for a general mandatory retirement age to be lawful, however, the facts in Mallon differ to the within case: The Complainant was forced to retire at 66, whereas Mr Mallon retired at age 70; the Complainant worked in the private sector, while Mr Mallon worked in the public sector; the Complainant is not in the same financial position as Mr Mallon who could continue to work post-retirement as a Solicitor; unlike in Mallon, the Respondent is unable to show that they carried out any assessment of roles in the company or how they arrived at a legitimate aim or what research was carried; the Respondent has blatantly attempted to retrospectively justify a compulsory retirement age.
18. The Respondent cannot rebut the fact that the Complainant was discriminated against by way of dismissal. The Complainant’s employment was simply terminated on her 66th birthday. No rationale was provided to show that this compulsory retirement was objectively and reasonably justified by a legitimate aim that was appropriate and necessary to achieve that aim.

Summary of Respondent’s Case:

19. The company’s normal retirement age is on the last day of the month that an employee reaches their 65th birthday. The normal retirement age is outlined in the HR Procedural Guidelines for retirement.
20. The Complainant was due to retire as per the company’s normal retirement age of 65 on 1 March 2023. The Respondent granted the Complainant’s request to work beyond her retirement date and issued her with a Post-Retirement Fixed Term Contract of one year’s duration, which commenced on 1 March 2023 and expired on 1 March 2024.
21. On 12 October 2023, the Complainant requested an extension to the one-year fixed term contract. The request was denied. The Complainant was advised that her request was denied, in line with the company policy and the WRC Code of Practice on Longer Working, and Government and Social Policy. The Complainant appealed that decision. An appeal hearing was conducted on 4 January 2024.
22. In the appeal outcome letter dated 10 January 2024, the appeal hearer, Mr Shane Glackin, stated: -

“Having thoroughly examined all relevant information, including the company’s retirement policy, it is important to note that your current employment is under a one-year post-fixed contract initiated on 01st March 2023 and concluding on 1st March 2024. This extension aligns with the WRC Code of Practice on Longer Working, facilitating prolonged engagement. While you alluded to potential future changes, it is crucial to address matters based on the existing scenario. Despite your concerns, the decision not to grant a second post-retirement fixed-term contract has been upheld, in accordance with the business objective outlined in the attached copy of our post-retirement fixed-term contract.”

23. The Complainant has failed to establish a prima facie case of discrimination. The Complainant has not presented facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Complainant has provided no evidence of less favourable treatment.
24. The retirement age of 65 is outlined in the Respondent’s retirement procedure as follows: “The company contractual retirement age is on the last day of the month where an employee reaches their 65th birthday”.
25. The Post-retirement Fixed Term Contract, signed by the Complainant on 23 February 2023 states that “the parties agree that the normal retirement age with Bausch + Lomb is 65 years and it agreed that the date on which you retired from your position in Bausch + Lomb is on the last day of the month where you reach your 65th birthday”. The express term has been legitimised through the regular retirement of staff at age 65.
26. The Respondent relies on S.I. 600/2017 WRC Code of Practice on Longer Working, in which it is stated:

“Essentially the law is now that compulsory retirement ages set by employers must be capable of objective justification both by the existence of a legitimate aim and evidence that the means of achieving that aim is appropriate and necessary. Examples of what constitutes a legitimate aim by an employer may include:

Intergenerational fairness (allowing younger workers to progress);

Motivation and dynamism through the increased prospect of promotion;

Health and Safety (generally in more safety critical occupations);

Creation of a balanced age structure in the workforce;

Personal and professional dignity (avoiding capability issues with older employees); or

Succession planning.”

27. The Respondent’s normal retirement age of 65 years is objectively justified to achieve the majority of the legitimate aims as stated above, namely health and safety, intergenerational fairness, creation of a balanced age structure in the workforce and succession planning and preserving the dignity of older workers.
28. Without prejudice to the above, the Respondent in good faith, acceded to the Complainant’s request to work beyond age 65 by issuing her with a post-retirement fixed term contract. The Complainant accepted the terms and conditions contained within that contract.
29. The Complainant’s request to work beyond the expiry of the fixed term contract was declined. The Complainant had no reason to expect that any extension would be made, as she agreed to all the terms and conditions of the post-retirement fixed term contract on 23 February 2023.
30. The Complainant was not discriminated against on the ground of age. The termination of the Complainant’s employment occurred based on the mutually agreed period within the post-retirement fixed term contract. The Respondent’s refusal to grant an extension to this contract on several grounds, including intergenerational fairness, constitutes a legitimate aim and is crucial for the future viability of the business. The Respondent employs over 1,600 staff on site where the Complainant was employed. As 10% of the workforce are due to retire within the next 5 years it would be untenable to find the Respondent should take action which would have considerable effects on the intergenerational issue and balanced age structure in the workforce.
31. The Supreme Court in Mallon definitively rejected the proposition that individual assessment is required to justify a mandatory retirement age. It further ruled that a measure providing for mandatory retirement may be justified even where it does not expressly identify the aim being pursued. The "general context" of the measure can be relied upon to identify the underlying aim. The Respondent’s legitimate aims—workforce planning, and intergenerational fairness—are well-established social policy objectives, endorsed by Mallon. Any argument that these aims are invalid simply because they were not exhaustively debated with the Complainant when her contract expired is legally flawed.
32. The Supreme Court in Mallon noted that a significant factor in assessing whether a mandatory retirement rule is “appropriate and necessary” will be the financial impact on the persons involved and whether it will result in undue hardship to them. The Complainant had access and was a member of the Respondents Defined Benefit Pension Scheme while it was in operation. At no stage did the Complainant put forward financial reasons in her request for Longer Working either initially or when seeking a successive post-retirement fixed term contract.
33. The Respondent complied with the spirit of the Code of Practice on Longer Working (S.I. 600/2017) by giving careful consideration to the Complainant’s initial request to work longer, granting her a one-year contract. Exercising this flexibility did not invalidate the Respondent's overarching compulsory retirement age, nor does it create an obligation to grant endless extensions.
34. The Act at Section 6(3)(c) provides that it shall not constitute discrimination to offer a person a post-retirement fixed term contract. In Mallon, the Supreme Court confirmed that employers enjoy "broad discretion" in their choice of social and employment policy aims, and in defining measures capable of achieving them. Finding the "right balance" between the interests involved is primarily for the employer/competent authority, provided the measure is not unreasonable. The Respondent’s normal retirement age of 65 years, coupled with the mechanism to offer a post-retirement fixed-term contract (which the Complainant availed of until age 66), is a proportionate means of achieving workforce planning and intergenerational fairness.

Witness Testimony

35. The Court heard witness testimony from the Complainant, Ms Walsh, her SIPTU Shop Steward, Ms Suzanne Kelly, and the company HR Director, Ms Niamh Hayden.

Evidence of the Complainant - Pauline Walsh.

36. The Complainant sought an extension to work beyond her retirement date. She was not aware of a company retirement policy. She never saw or requested a copy of such a policy. The Complainant attended the appeal hearing with her shop steward, Suzanne Kelly, and explained why she wanted to stay on and work. The appeal hearer took down details of what she said but did not explain to her why he could not extend her contract. The meeting lasted about 20 minutes.

Evidence of the Complainant’s Shop Steward - Suzanne Kelly.

37. Ms Kelly worked for 25 years as a shop steward with the company. Ms Kelly was not aware of a company retirement policy. Her first sight of any HR guideline was at a WRC hearing for another colleague (Mr M). Policies are normally shared with the union, while procedural guidelines are not.
38. New employees are generally issued with fixed term contracts of employment for three- or six-months duration depending on business needs. Contracts are often extended for business needs. On reaching two years’ service, employees are made permanent. If a contract of employment expires and an individual called back within six-months, their service is viewed as continuous.
39. Ms Kelly attended the Complainant’s appeal hearing. Ms Kelly outlined the grounds for appeal: the Complainant wanted to stay at work and was willing to get a medical certificate if required; it would take six months for another employee to become proficient in her role; succession planning was not required on her production line as that line was dying; government policy was changing and it was important to have a good mix of ages in the workforce to ensure intergenerational fairness. On reaching 65 years of age, a person is well capable of working for longer. Ms Kelly said that the floodgates have not opened, as there has been one only one other application aside from the Complainant and Mr M.
40. Under cross examination, Ms Kelly disputed there was a compulsory retirement age in the company. Not everyone was a member of the pension scheme and received pension documentation setting out a ‘normal retirement date’. She accepted that the accepted practice in the organisation was a normal retirement age of 65 years of age and that those who wish to stay on were granted a post-retirement contract.

Evidence of the HR Director - Niamh Hayden

41. Ms Hayden is the HR Director and has worked for the Respondent company for three years.
42. The normal practice in the company is that employees are contacted six to eight months before retirement to inquire if they wish to remain in employment, so that is factored into the work force planning. It is in everyone's interest to be clear if somebody wishes to stay or not. The practice is to provide employees with a 12-month fixed term contract with no extensions. Alternatively, the employee undertakes a retirement course.
43. There is no written policy on retirement. The objective justification for setting a retirement age of 65 years is set out in the HR Procedural Guideline on retirement. HR guidelines are not generally shared with the trade union, and there was no request in this case by the Union to see it. The most important objective justification for a mandatory retirement age relates to workforce planning, as the company needs to plan its resource requirements twelve months ahead. Employee turnover is very low at 5 or 6% per annum. Of those leaving the company, about half are retirees and the other half are employed on fixed term contracts.
44. Some fixed term contracts cease upon the contract’s expiry date, while others are extended if there is an ongoing business need. On completing two years’ service, an individual is made permanent.
45. Ms Hayden said that the grounds for refusing the request to work for a longer period were as set out in the letter of 10 November 2023. The Complainant was granted a fixed term contract. The WRC Code of Practice was considered, hence the practice of offering employees the option of a 12-month fixed term contract. Under cross examination, Ms Hayden accepted that the wording in letter was identical to that used in a letter issued to another former employee (Mr M.). She said the WRC Code of Practice was considered when issuing the first fixed term contract to the Complainant, but not for the request for the second fixed term contract. Ms Hayden accepted that there was no reference to a ‘company policy on retirement’ in the letter, as asserted in the Respondent’s written submission to the Court.
46. Ms Hayden said that succession planning was the only relevant factor in terms of objective justification, as the company had to plan for production and ensure it had the right people in the right places at the right time. Potentially other people were returning to work from long term absence. She did not discuss succession planning with the Complainant.
47. When asked why fixed post-retirement contracts were of one year duration, Ms Hayden said that was what was agreed at the time with the first post-retirement contract. Approximately, seven employees in the past year who had engaged in post-retirement fixed term contracts.

The Law Applicable:

48. The relevant law under the Act is set out below. Section 6(1) of the Act provides, in relevant part, as follows: -

“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) 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
• (j) 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

49. In this case the Complainant’s employment came to an end on the expiry of a twelve-month post-retirement fixed term contract on reaching her 66th birthday.
50. 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 Respondent relies on the exemptions provided in the Act which allow for differences of treatment on ground of age 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. The burden of proof rests with the Respondent to show that discrimination has not occurred.

Was there a compulsory fixed retirement age?

51. To avail of the limited exemptions under the Act, an employer must establish in the first instance the existence of a fixed retirement age in the employment, which in this case is disputed.
52. The Complainant contends that the Respondent cannot rely on a compulsory retirement age as an express or implied term of her employment, as there was no express retirement term within her contract of employment. The Company union agreement is silent on retirement age.
53. The Respondent’s position is that the company’s normal retirement age is the last day of the month that an employee reaches their 65th birthday. The Respondent confirmed that is no written retirement policy in the employment, but submits that pension documentation refers to the term “normal” retirement age and a HR Procedural Guideline on Retirement, drafted in September 2022, states as follows: -

“The company contractual retirement age is on the last day of the month where an employee reaches their 65th birthday.

54. The HR Director’s evidence that the normal practice in the company is that employees are contacted six to eight months before their normal retirement date to inquire if they wish to remain in employment, so that is factored into the work force planning. While the shop steward, Ms Kelly, disputed the existence of a compulsory retirement age, she acknowledged that the accepted practice in the company was that a normal retirement age of 65 years applied and that those who wish to stay on were granted a post-retirement contract. Both parties accept that the normal retirement age in the company is 65 years of age and in advance of reaching her 65th birthday the Complainant formally requested an extension to her employment contract.
55. Based on the submissions made and the evidence tendered, the Court is satisfied that there is a fixed retirement age in the employment of 65 years of age which has been established through custom and practice. In this case the Complainant wished to remain in employment after her 65th birthday and was granted a twelve-month post-retirement fixed term contract.

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

56. 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. In this case, the Complainant sought to remain working beyond the fixed retirement age of 65 years and the Respondent acceded to that request. The Respondent did not enforce the mandatory retirement age of 65 years in the Complainant’s case. As a result, the Court finds that the limited exemption provided at section 34(4) is not applicable to the facts in this case and the Respondent cannot rely on that provision of the Act.

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

57. 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.
58. In this case, the Respondent agreed to extend the Complainant’s employment beyond her contractual retirement date by way of a fixed term contract of employment. To avail of the exemption provided at Section 6(3)(c ) the Respondent must demonstrate that its actions were objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.

Must a legitimate aim be advised to a worker in writing?

59. The Complainant contends that the Respondent cannot rely on the exemptions provided under the Act as a defence, as at no point did the Respondent objectively justify the reasons for their decision, and their only response was “expiry of contract”. The Complainant contends that the Respondent has attempted to retrospectively justify a compulsory retirement age. As confirmed by the Supreme Court in Mallon v The Minister for Justice & Ors [2024] IESC 20 the fact that the Respondent did not identify the legitimate aim underpinning the mandatory retirement age in the employment does not negate or invalidate the existence of such a legitimate aim.
60. The Supreme Court in Mallon - addressing the issue of a mandatory retirement age of a county sheriff - held that a “general context” can be relied upon in retrospect to argue that a particular measure is objectively justified.

“A measure providing for mandatory retirement (whether a legislative measure or a provision of a collective agreement) may be justified even where it does not identify the aim being pursued: the “general context of the measure concerned” may be relied on to identify the underlying aim of the measure for the purpose of judicial review of its legitimacy and whether the means put in place to achieve that aim were appropriate and necessary (Palacios de la Villa, paras 54-57; Age Concern England, para 45; Case C-341/08 Petersen, para 40; Rosenbladt, para 58; C-268/09 Georgiev, para 40).”  (at paragraph 62(3)).

61. The proposition that an individual assessment is required to justify a mandatory retirement age was also rejected. The Supreme Court found that the absence of individual assessment does not make the measure disproportionate:

76.” …the absence of flexibility on a case by case or role by role basis does not, on its own, render a measure disproportionate. But it appears to me that the CJEU jurisprudence goes further than that. There is no principle that case by case or role by role assessment is presumptively required or that it must be shown to be impractical if a “blanket” retirement age is to be justified. On the contrary, the CJEU has recognised that it is reasonable for Member States to adopt generally applicable mandatory retirement rules, without any requirement for individual capacity assessment, and that the “consistent and systematic” and “coherent” application of such rules is not simply permissible but is in fact an important element of the proportionality analysis under Article 6(1) of the Directive. 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.

77. Accordingly, I agree with the State Respondents’ submission to the effect that, provided that the aims sought are legitimate, and that the measure in question is proportionate, a mandatory retirement rule does not offend the prohibition on age discrimination set out in the Directive notwithstanding that it does not entail an individual assessment of those subject to such rule.26 That is certainly the position as a matter of general principle. 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) which are sought to be justified by reference to Article 4 of the Directive...”
78. While it may be good practice to do so, an employer is not obliged to expressly identify a legitimate aim directly to the Complainant to justify a mandatory retirement age or to justify the use of a fixed term contract of employment post-retirement. An employer is not required to undertake an individual assessment in each case.

Was a mandatory retirement age objectively and reasonably justified by a legitimate aim?

63. For an aim to be legitimate, it must correspond to social policy objectives related to employment policy, labour market or vocational training. In Mallon, the Supreme Court summarised the principal points from CJEU authorities on the compatibility of mandatory retirement regimes with the Directive, at paragraph 62 as follows: -

“(4) The aims which can be considered to be a “legitimate aim” for the purposes of Article 6(1) are “social policy objectives, such as those related to employment policy, the labour market or vocational training” which are, by reason of their public interest nature, distinguishable “from purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness”, though national rules may recognise a certain degree of flexibility for employers (Age Concern England, para 46; C-160/10 Fuchs & Köhler, para 52).

(5) A variety of often overlapping aims have been recognised as legitimate in this context, including:

(i) promoting the employment of younger people and facilitating their entry to the labour market (Palacios de la Villa, para 62-66 (workers in the textile trade))

(ii) promoting the access of young people to the professions (Petersen, para 68 (public dentists))

(iii) establishing an age structure that balances younger and older workers (Joined Cases C-250/09 and C-268/09 Georgiev, para 45 (university lecturers); Joined Cases C-159/10 and C-160/10 Fuchs & Köhler, paras 49 and 50 (public prosecutors); Case C-286/12 Commission v Hungary, para 62 (judges, prosecutors and notaries))

(iv) sharing employment between the generations (Case C-45/09 Rosenbladt, paras 43-45 (commercial cleaners))

(v) improving personnel management by enabling efficient planning for departure and recruitment of staff (Fuchs & Köhler, paras 47 and 50)

(vi) preventing possible disputes concerning employees’ fitness to work beyond a certain age (Fuchs & Köhler, para 50)

(vii) avoiding employers having to dismiss employees on the ground that they are no longer capable of working which may be humiliating for the employee (Rosenbladt, paras 43 & 45; Case C-141/11 Hörnfeldt, paras 26 & 30 (postal workers))

(viii) standardising retirement ages for professionals in the public service (Commission v Hungary, para 61).

(6) Member States enjoy “broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it” (Palacios de la Villa, para 68; Age Concern England, para 51; Georgiev, para 50; Fuchs & Köhler, paras 61 & 80; see also Mangold, at para 63).

(7) Members States have a choice “on the basis of political, economic, social, demographic and/or budgetary considerations and having regard to the actual situation in the labour market in a particular Member State, to prolong people’s working life or, conversely, to provide for early retirement” and it is “for the competent authorities of the Member States to find the right balance between the different interests involved” subject to the measures not going beyond what was necessary and appropriate to achieve the aim being pursued (Palacios de la Villa, para 69 & 71; Rosenbladt, para 44; Fuchs & Köhler, paras 65 & 81).”

64. For an aim to be legitimate, it must correspond to social policy objectives related to employment policy, labour market or vocational training. The aim should correspond to a public interest rather than a purely private interests, such as cost reduction or improving competitiveness. While commercial and financial considerations may underpin employer policy with respect to fixing a compulsory retirement age, such considerations cannot constitute a legitimate aim.
65. In this case, the Respondent submits that the operation of a mandatory retirement age of 65 was objectively justified to achieve legitimate aims relating to health and safety, intergenerational fairness, creation of a balanced age structure in the workforce and succession planning.
66. Ms Hayden gave evidence that, to ensure intergenerational fairness and workforce planning for the future, the company must have a retirement policy in place that allows them to plan for the future while balancing retirement planning for those who wish to work beyond their contractual retirement age. Her evidence was that the most important justification for fixing a mandatory retirement age relates to workforce and succession planning, as the company needs to plan its resource requirements twelve months ahead. Employee turnover is very low at 5 or 6% per annum. Of those leaving the company, about half are retirees and the other half are employed on fixed term contracts. The company had to plan for production and ensure it had the right people in the right place at the right time. Potentially other people were returning to work from long term absence. She did not discuss succession planning with the Complainant.
67. The test to be applied is whether the rationale for fixing a mandatory retirement age appears reasonable, while not undermining or frustrating the general prohibition on discrimination on grounds of age. In the Court’s view the Respondent has set out objective grounds for fixing a mandatory retirement age insofar as they relate to workforce planning and enabling efficient planning for the departure and recruitment of staff (as per Fuchs & Köhler, paras 47 and 50). The Court is satisfied that such an aim falls within legitimate employment policy objectives. The Court is satisfied that the Respondent is best placed to assess what resources are required to ensure that proper functioning of its business.
68. Having regard to the above, the Court is satisfied that the Respondent has established that a mandatory retirement age was objectively and reasonably justified by a legitimate aim.

Was the termination of the Complainant’s employment on the expiry of a post-retirement fixed term contract an appropriate and necessary means of achieving the legitimate aim?

69. In this case the Complainant contends that her employment was terminated on the expiry of a fixed term contact, whereas the Respondent did not use age as a deciding factor when considering whether to terminate or renew fixed term contracts issued to younger employees.
70. The fact that an employer may exercise flexibility in extending employee’s employment contracts by offering fixed term employment contracts does not necessarily indicate less favourable treatment on the age ground. It is permissible to offer an employee who is above retirement age a fixed-term contract, where to do so is underpinned by a legitimate aim and the means of achieving the aim are appropriate and necessary. This Court has held that the availability of extensions to employment contracts beyond a mandatory retirement age can be an appropriate and proportionate means of implementing a mandatory retirement rule that effectively balances competing considerations where an employee wishes to remain in the workforce work for longer. However, the onus rests with the Respondent employer to demonstrate that the use of such contracts is appropriate and necessary having regard to the facts of each case.
71. The appeal outcome letter dated 10 January 2023, which confirmed the Respondent’s refusal of the request for an extension to the Complainant’s fixed term contract, was not of assistance to the Court in its deliberations. The letter stated that the decision not to grant a second post-retirement fixed term contract was made in accordance with business objectives outlined in the Complainant’s post-retirement fixed term contract, yet no details of any business objectives were contained in the post-retirement fixed term contract. The Court was told the business objectives were those as stated in the HR Procedural Guideline as justifying a mandatory retirement age and referenced at paragraph 27 above.
72. Ms Hayden gave evidence that the practice in the company is to provide employees with a 12-month fixed term contract with no further extensions thereafter. When asked why fixed post-retirement contracts were of one year duration, Ms Hayden said that was what was agreed at the time with the first post-retirement contract.
73. The Court heard no evidence to explain how or why the use of a 12-month fixed term contract was an appropriate way or a necessary measure to achieve the company’s stated aims with regard to resource planning. Having regard to the facts presented, the Respondent did not explain to the satisfaction of the Court the rationale for using fixed term contracts or why they are fixed at 12-months duration.
74. The Complainant further contends that her employment was terminated on reaching her 66th birthday, while another employee was allowed to remain in employment up to age 67.
75. The fact that the terms of fixed-term contract extensions granted to employees may vary does not necessarily indicate less favourable treatment on the age ground if the Respondent can demonstrate that the rationale for varying those terms is appropriate and necessary. The Court heard much evidence that the wording in correspondence from the company to an individual, who was refused a request for a further employment extension beyond age 67, mirrored that which was sent to the Complainant. However, no evidence was presented to the Court to explain why another individual was treated differently to the Complainant and allowed to remain in employment until 67 years of age.
76. 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. The Court’s role is not to carry out a de novo assessment of the Respondent’s decision to enforce a mandatory retirement, but rather to assess if the decision made at that time appears to be unreasonable such that it falls outside the limited exemptions provided in the Act which allow for differences of treatment in certain circumstances. The burden of proof rests with the Respondent to show that discrimination has not occurred.
77. In this case, in light of the submissions made and the evidence tendered, the Court is not satisfied that the Respondent has presented sufficient evidence to demonstrate that the enforced retirement of the Complainant was a reasonable or appropriate measure that falls within the ambit of limited exceptions provided in the Act. Having regard to the facts presented, the Court is not satisfied that the Respondent has set out a rational and objective basis for its actions in terminating the Complainant’s employment on the age ground when it did. As a result, the Court, 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.

Finding:

78. For the reasons set out herein, the Court concludes that the enforced retirement of the Complainant on 1 March 2024 amounted to discrimination on the ground of her age. The Court finds that the complaint is well founded.  The Court directs the Respondent to pay the Complainant compensation of €3,000.00. The Complainant’s appeal succeeds.  The Decision of the Adjudicator is set aside.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
20/07/2026	Deputy Chairman

NOTE

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