Complainant

Respondent

Parties

John  Hosey

Kostal Ireland Gmbh

Representatives

 SIPTU

 IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00065601-001

26/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00065601-002

26/08/2024

The Complainant was employed as a Production Operator and was required to retire at the age of 65. The Complainant submitted two complaints under the Act. He contended that he was dismissed for a discriminatory reason (age) and that the Respondent engaged in a discriminatory act (forcing retirement) based on age. Both complaints arise from the same set of circumstances and can be dealt with as one.

The case concerns the enforced retirement of the Complainant at age 65 years, amounting to a discriminatory dismissal.

The Complainant commenced employment with the Respondent on May 30, 2005, as a Production Operator.

The Complainant had an excellent record in terms of time, attendance, and performance with the Respondent.

The Complainant's contract of employment is silent on retirement age. However, the contract refers to a company union agreement setting the retirement age at 65.  Said Union Agreement also refers to “equal opportunities” and notes that the company will not discriminate based on age. This has not been the Complainant's experience

The company’s retirement procedure sets a retirement age of 65 and cites objective justifications such as maintaining dignity, avoiding capability issues, succession planning, intergenerational fairness, and a balanced workforce age structure. However, none of these justifications were applied to the Complainant. At the time of retirement, the Complainant had no capability issues, did not hold a promotional post impacting succession planning, and his continued employment posed no issue to age balance. While the procedure claims compliance with S.I. No. 600 of 2017, the company failed to follow its guidelines, namely, to fairly consider extension requests, explore fixed-term or flexible arrangements, and provide objective justification as required under the Employment Equality Acts.

The Pension Plan for the company provides that: “In normal circumstances you will retire on your 65th birthday, your Normal Retirement Date. With the Company's consent, you may retire early if you are over age 50, or at any time if you are in ill health. In exceptional circumstances you may also be allowed to defer your retirement beyond your Normal Retirement Date.” The pension plan does not clarify or define what constitutes "exceptional circumstances". However, it clearly outlines that working beyond the age of 65 is allowed for in the pension plan.

On January 26, 2024, the Complainant submitted a request to Mr. Liam Linehan, Head of HR, to continue working beyond the age of 65 until he turned 66, and inquired about the company’s position regarding the new retirement laws.

 Subsequently, on February 2, 2024, Noreen Keating of HR responded by simply restating the contractual retirement age of 65, without addressing the Complainant’s query regarding the company’s policy in light of new retirement laws.

 On February 21, the Complainant informed Ms. Keating that he wished to appeal the company’s decision regarding his retirement. On February 26, the company responded, advising him to submit a grievance to his immediate supervisor, outlining the reasons for his appeal.

On 29th February, the Complainant’s supervisor, Mr. Keane, wrote to Ms. Keating to confirm that a grievance meeting had taken place, during which he outlined the company’s position on the retirement age to the Complainant. Notably, this correspondence does not include any objective justification for the company’s refusal to consider extending the Complainant’s retirement beyond the age of 65.

Against the backdrop of ongoing legislative reform concerning retirement age in Ireland, specifically, the forthcoming Employment (Contractual Retirement Ages) Bill 2025, which aims to restrict mandatory retirement below the State Pension age of 66 unless objectively justified, SIPTU Shop Steward Mr. O’Sullivan emailed Mr. Keane on 26 April, confirming that the Complainant had raised a grievance and requesting a grievance meeting. Following the meeting on 30 April, Mr. Keane responded by email, stating that the company’s retirement age remains 65. He also noted that the company pension plan is contracted on the basis of retirement at 65 and referenced the government’s proposal to increase the retirement age to 66 as being under discussion but not yet enacted. The response from the company to the Shop Steward is absent of any objectified justification for the company not to consider the Complainants request.

 The Complainant was forced to retire on the May 29 2024.

On July 3, 2024 SIPTU wrote in error the employees line manager. On July 4 2024, SIPTU wrote to Ms. Keating in HR, stating that the Complainant had requested to continue working beyond the age of 65. The union highlighted the employer’s obligation under S.I. No. 600/2017 to give due consideration to such a request and to provide an objective justification for any refusal. The letter noted that no such justification had been provided. On that basis, SIPTU informed the employer that it believed the Complainant had been discriminated against on the grounds of age and that the matter was being referred to the Workplace Relations Commission, as the union viewed the company’s actions as constituting discriminatory dismissal.

On 19 July 2024, Ms. Keating responded to SIPTU, outlining the company’s retirement policy, which specifies a retirement age of 65. The response also referenced the company’s union agreement, which similarly includes a retirement age of 65. However, the response failed to provide any objective justification for requiring the Complainant to retire at that age.

The company did not issue a formal written outcome in response to the Complainant’s request or grievance. The closest indication of the company’s reasoning is found in its retirement procedure, and in a letter sent to the union, in the retirement procedure, the company outlines a number of 'legitimate aims' to support its retirement policy. These include: a) Avoiding capability issues b) Maintaining employee dignity c) Succession planning d) Promoting intergenerational fairness e) Ensuring a balanced workforce age structure These same reasons are reflected in the company’s correspondence to the union, which also refers to current and future business needs, the existing union agreement, and the structure of the company’s pension scheme as the basis for its decision.

The dismissal of the Complainant at age 65 was not objectively and reasonably justified by a legitimate aim as the above list does not apply to the Production Operator in Kostal Ireland GmbH. For instance, a) Maintaining employee dignity, For example, the company’s reliance on this as a legitimate aim is not applicable in this case. The Complainant has never experienced any physical difficulties in performing his duties and has consistently met the required performance standards. Furthermore, manufacturing in the context of electronic and mechatronic products is not inherently hazardous or physically strenuous, and therefore does not support the argument that continued employment beyond the age of 65 would compromise the Complainant’s dignity.

In the case of b) employee dignity, the Complainant confirmed he would willingly cooperate with a medical assessment. This could not be considered as eroding his dignity especially as the alternative would be applying for job seeker's benefit, unnecessarily.

As for c) d) and e) - Succession planning, intergenerational fairness or ensuring a balanced workforce age structure, is not realistic as the post held by the Complainant is not a promotional post.

Discrimination on grounds of age is prohibited under Council Directive 2000/78/EC. The question of whether the imposition of a mandatory retirement age is permissible under EU law has been considered in several cases. It is now well established that the mandatory retirement age must be objectively justified having regard to public policy considerations.  In Ireland there is no compulsory retirement age, and an employee has a legal right to continue working regardless of their age. However, section 34(4) of the Employment Equality Acts 1998-2015 (“the acts”) permits an employer to fix different retirement ages provided they can show that it is objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

The test for objective justification is set out in Donnellan v the Minister for Justice and ors [2008] IEHC 467. In that case McKechnie J held: “National measures relating to compulsory retirement ages, are not excluded from consideration under [the directive]. Any discrimination with regards to age must, as put by that directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e, they should be proportionate”. McKechnie J also held in this case that the imposition of retirement age should be individually assessed i.e. , on a case-by-case basis. The Respondent in this case has not met this bar.

The Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (S.I. 600/2017) set out the best industrial relations practice for managing and engagement between employers and employees in the run-up to retirement age within the employment concerned. In the Complainant's case, it clearly states in the company’s pension plan that working beyond 65 is possible, therefore, providing a legitimate expectation. The Respondent applied mere lip service to the requirements under the code. As per McGrath V Focus Ireland (ADJ- 00018823); “It was not necessary to use the blunt indicia of age when fitness could have been regionally assessed in other ways.” The Complainant would have willingly attended annual medical assessments in order to continue in employment. The test of whether a retirement age is objectively justified as set out in John O'Brien v PPI Adhesive Production LTD [ADJ-00009914] as follow: “1. What was the de facto situation in the Respondent's company at the time? 2. Do the measures in relation to mandatory retirement seek to achieve a legitimate aim? 3. Is the aim legitimate in the particular circumstances of this case? 4. Are the means of achieving the aims proportionate?” This test was not met by the Respondent in this case.

As stated by the Labour Court in Bord na Mona plc v Kenny, EDA2232, “[objective justification for interfering with an individual's employment rights requires a proportionality assessment to balance conflicting interests that must be decided on the facts of each case.” In respect of the Complainant, the Respondents submitted that the Complainant's retirement at age 65 was necessary and proportionate to serve many of the aims stated in The Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (S.I. 600/2017). However, in the instant case, aims a) – d) as per above, are not applicable.

The establishment of a legitimate aim is only one step of the process and therefore the retirement age of 65 is not appropriate unnecessary in respect of the Complainant. But stated by McKechnie J in Donnellan: “the measure must go no further than is required to reach the legitimate aim and must do so in the least restrictive way possible” The Complainant has an excellent work record, and was entirely capable of working beyond age 65, and there was a continuing need for the work performed by the Complainant. Therefore, the Complainants compulsory retirement at age 65 constituted an act of discrimination within the meaning of section 6 of the acts.

In the WRC cases of Valerie Cox v RTE [ADJ-00006972] and Anne Roper v RTE [ADJ-00019084] the Respondent identified in its staff manual a ‘normal’ retirement age of 65. However, the court held this was not a compulsory retirement age, and both complainants were successful in their claims of discrimination on the grounds of age. Likewise, the Respondent in this case has a retirement plan stating ‘normal’ and not a compulsory, retirement age.

 If the Respondent seeks to use the objective justification of interface generation fairness, we again refer to the adjudication officer in Anne Roper, who relied upon the UK Supreme Court decision of Seldon versus Clarkson, Wright and Jakes. The Supreme Court in the UK confirmed that intergenerational fairness must not be confined to young people. The Adjudication Officer in Anne Roper stated the Respondent should have considered available options to include a temporary assignment for a fixed term. This was not considered by the Respondent. In Sales Advisory V DIY [ADJ- 00013899] the WRC, finding for the complainant in that case concerning compulsory retirement, recognised the need for the Respondent to consider alternative options. The adjudication officer stated: “The regrettable fact in this case is, however, that the parties were not minded to sit down and tease out unless absolute alternative to automatic termination at age 65”. The Respondent in this case would not engage with the appellant issuing diktat only. In the instant case, the Respondent parroted the same aims without meeting the criteria of the Act or code.

 The Respondent in this case did not establish: (a) a contractual retirement age of 65 formed part of the complainant's terms and conditions of employment; (b) that the mandatory retirement age serves to legitimate aim or purpose; and (c) the means of achieving that aim or purpose was proportionate. Despite multiple reasons being given for a compulsory retirement age, none amount to a legitimate aim. In terms of redress, having regard to the requirement under Article 17 of the Framework Directive as interpreted by case law that the sanction be “effective, dissuasive and proportionate” the Complainant is seeking the equivalent of 104 weeks’ pay.

The within claim by the Complainant against his former employer, is brought under Section 77 of the Employment Equality Acts, 1998 – 2015 lodged with the WRC on 26 August 2024  As both claims 001 and 002 are identical, the Respondent requests that the claim be merged into a single claim. Without prejudice the Complainant’s claim of discrimination necessitates the discharge of the burden of proof that there is a prima facie case to answer by the Respondent as prescribed by section 85A of the Employment Equality Acts, 1988-2015. The following submission is made strictly without prejudice basis to the Complainant’s obligation to discharge this burden of proof.

Background to the Respondent. KOSTAL Ireland GmbH has two manufacturing plants in Ireland based in Abbeyfeale, County Limerick and Mallow, County Cork manufacturing automotive products for the car industry. There are 432 (April 2025) people employed on the site in Abbeyfeale which was established in 1981 (down from 550 in 2024) and 306 people on the Mallow site which was established in 2001.

The Complainant commenced employment in the position of Production Operator on 30th May 2005 at the Respondent's Mallow site and continued to work within the business until his retirement on 29th May 2024. Between 2 October 2006 and 25 November 2007, he performed the role of a Material Handler on a fixed term basis before returning to his permanent position of Production Operator on 26 November 2007.

 The complaint form submitted to the Workplace Relations Commission outlines that the Respondent has directly discriminated against, the Complainant citing age related grounds. The Respondent refutes this claim in its entirety.

The Complainant’s contract of employment signed by the Complainant on 30th May 2005 and the Complainant’s fixed term contract of employment which he signed on 21 August 2006 has the following clause at its signing page: This clause, which was signed by the Complainant, expressly provides that I accept and agree to be bound by the terms and conditions set out in the letter of offer and those outlined in the collective agreement made on my behalf between the Company and the Trade Union. Page 11 of the Collective Agreement for KOSTAL Mallow  provides as follows: As part of his contractual documentation, the Complainant also signed to confirm he had received a copy of the collective agreement. This acceptance page, signed by the Complainant, expressly provided that I acknowledge receipt of a copy of the Agreement made between ...the Company and ....the Union and I fully understand, accept and agreed to be bound by the terms and conditions set out in such Agreement and those contained in the agreements made on my behalf between the Company and the Trade Union.

Page 1 of his contract of employment also clearly provided for membership of the pension scheme as a term and condition of employment. The Complainant was a member of the pension scheme and would have received pension statements each year. The Company operated and continues to operate a consistent policy of members retiring at the age of 65 years and the Complainant would have been invited to attend any in house retirement presentation over the years for any colleagues retiring at the age of 65. The Complainant was offered a pre-retirement meeting with the Pension Providers five years in advance of retirement in line with standard arrangements and the Company’s retirement policy. The Complainant had the opportunity to reduce his working hours as per the Company’s normal pre-retirement procedures to allow employees to adjust to transition which he did not take up. The Respondent also has a Retirement Procedure in place. This procedure clearly provides that the automatic age of retirement in KOSTAL Ireland GMBH is 65 years.

The Respondent further submitted that, by custom and practice, the retirement age of 65 has clearly been established and maintained. Since the Respondent’s Mallow plant has been in operation, at least 16 employees have actually retired, between 2019 and 2025 year to date, with 5 more employees due to retire in Mallow this year. None of those employees who have retired have been over the age of 65 and the Respondent’s practice of requiring employees to retire on reaching the age of 65 is consistently and fairly applied without exception.

The Complainant has not nominated any comparator who he believes was permitted to work past normal retirement age.

History of Complaint; On the 26th January 2024, Mr Hosey, sent an email to Mr Liam Linehan, Head of Human Resources asking what the Company's policy was in relation to new retirement laws, as he would like to continue working in KOSTAL until he was 66.. Ms Noreen Keating, HR Business Partner replied via email on the 2nd February 2024 that as per his terms and conditions of employment the retirement age as per his contract of employment was 65 years.

On the 21st February 2024, Mr Hosey replied to Ms Keating’s email confirming that he wished to appeal the Company’s decision on his retirement. Ms Keating confirmed to Mr Hosey via email on the 26th February 2024 that he would need to raise a grievance to his immediate Supervisor and who would upon receipt of his grievance organise a meeting with him.

Mr. Paudie Keane, Shift Supervisor met with Mr Hosey on the 29th February 2024, outlined to him the retirement age as per the collective agreement and issued him the KOSTAL retirement policy. He further explained that the pension provider are also paying out at 65 years of age. This was an informal meeting. Mr Hosey confirmed that he would be taking up the matter with his union representative.

On the 11th April, Mr Hosey sent an email to Mr Keane stating that he wished to proceed with his grievance regarding his request to work in KOSTAL until he was 66. Mr Hosey retired on 29th May 2024.

On the 3rd July, Mr Keane received an email with an correspondence from Mr Diarmuid Long, SIPTU Advocate referencing a previous email sent on the 24th May regarding Mr Hosey’s retirement from KOSTAL. On the 9th July, Mr Diarmuid Long, SIPTU Advocate forwarded this correspondence to Ms Keating HR Business Partner via email confirming in  his email that he was instructed by SIPTU’s division that this correspondence may be more appropriately addressed to Ms Keating. Attached to that email was correspondence dated the 4th July, SIPTU which stated that Mr Hosey should be given the opportunity to continue to work longer under SI 600, the statutory instrument under the Code of Practice on Longer Working of 2017. The Company was obliged to provide an objective justification for any refusal to all Mr Hosey work beyond the age of 65, which was not provided in this case.

Ms Keating replied to Mr Long, SIPTU on the 19th July 2024 confirming that the Company / Collective Union agreement and the retirement policy specifies the retirement age of 65. Mr Hosey as part of his contract of employment, agreed to the terms of the Company / Collective Union agreement. Ms Keating also referred to the “Industrial Relations Act 1990 (Code of Practice on Longer Working)” which states that there is no statutory retirement age in the private sector. Retirement ages as set out in the Code, in relation to employees in the private sector these are generally set out by means of: (a) an express term in the employee’s contract of employment; (b) an implied term in the employee’s contract of employment; (c) relevant policies, for example a staff handbook; and (d) custom and practice generally arising from the pension date set out in the relevant occupational pension scheme.

The Company’s decision on retirement is made having due regard to how employee employment numbers are planned to respond to current and future business needs, the terms within the Company / Collective Union Agreement as well as the provisions of the Company’s pension scheme and KOSTAL’s Retirement Procedure. Since Mr. Hosey’s retirement in May 2024 a Company announcement in October 2024, in the context of continuing business volatility, included a decision to seek voluntary redundancies and also initiate a review of the viability of KOSTAL’s Abbeyfeale business. 85 voluntary redundancies have been completed year to date and it is understood that the ongoing review of Abbeyfeale’s viability will take months, as communicated to all KOSTAL Ireland employees in March 2025.

Objective Reason; A summary of the objective reasons justifying the Respondent’s mandatory retirement age are as follows: • Maintaining the dignity of the individual (avoiding capability issues) • Succession planning and intergenerational fairness (retention & promotion of younger personnel through the business). • Creating a balanced age structure in the workforce. These objective reasons are clearly set out in the Employer’s retirement policy since 2017 and have not been objected to by the Trade Union despite regular collective bargaining engagements since the introduction of the policy. At no stage has the Trade Union sought and agreed an extension of working life arrangement as part of its collective agreement with KOSTAL Ireland, the Respondent. Maintaining the dignity of the individual (avoiding capability issues)

The Respondent contends that its mandatory retirement age of 65 serves as a measure to protect the dignity of older workers within its employment and to ensure a smooth transition to retirement. In the absence of a fixed retirement age, it is more likely that the termination of an older worker’s employment might be on grounds of capability or capacity. Addressing matters of capability or capacity are challenging at the best of times for both management and staff in any employment, but these issues are likely to be particularly difficult for a worker at the end of his/her career, usually having given many years of very good service to an employer. This is particularly the case in the Respondent’s business, where there are greater health and safety concerns for consumers, colleagues, people living in the locality and potential end users than might exist in other employments.

By enforcing its mandatory retirement age, the Respondent applies a transparent and consistent approach to retirement which is understood by all staff, and which avoids the necessity to approach older colleagues and address performance issues or capability issues which are more probable to arise as the age of the worker increases.

Succession Planning and intergenerational fairness. The Respondent is a large employer in Mallow, Co. Cork and plays an important role as an employer of 306 people in the local economy. It is vital that the Respondent can retain a 7 viable and thriving plant which is capable of winning business on an international scale in order to maintain the success of the company and continue to create and maintain secure well paid employment opportunities for future generations of employment. Such opportunities can only be effectively managed where there is certainty in respect of succession planning. A departure from the current collectively agreed retirement age of 65 years will by its nature create uncertainty both in relation to future vacancies and skills planning.

Staff turnover / fluctuation for both Abbeyfeale and Mallow since 2023 has been 0.4% per annum. During the same period, both Revenue and number of units produced declined significantly, consistent with challenges faced by the German automotive industry as follows: Actual 2020 Actual 2021 Actual 2022 Actual 2023 Actual 2024 KOSTAL Ireland’s Profit and Loss (Million €) Minus €11 Mio Minus €11 Mio Minus €5 Mio Plus €15 Mio Plus €9 Mio

Whilst the Respondent has experienced loss-making years in 2020, 2021 and 2022 profitability was restored since 2023. Currently the management team is focused on preserving as many jobs as possible in the Abbeyfeale site despite production volumes dropping significantly since 2020. Both sites have the same agreed retirement age and it is inconceivable that the company could reach agreement with its trade union to implement longer working on one site and not on the other site. Based on the history of industrial relations within the company and the fact that Abbeyfeale employs more SIPTU members than Mallow, such an collective agreement would never be achievable. Furthermore, if employees are entitled to work beyond the age of 65 years, it will also create additional cost pressures on the business around the cost of provision of other ancillary benefits such as potential redundancy costs and Death in Service payments. As any large employer is aware, certainty of cost provision is a legitimate objective of any employer and the extension of working life beyond the mandatory retirement age will increase the cost of redundancy provision and in the absence of an upper age limit, will create uncertainty in cost planning.

For this reason, it is the Respondent’s position that its retirement age of 65 is a reasonable measure which can be used to ensure that there is effective succession and cost planning, allowing for the transfer of work and the provision of benefits across different generations of employees. The Respondent further submits that to view the intergenerational objective ground solely as based on the creation of work or employment opportunities for younger generations of workers based on the retirement of an individual employee is to overly limit this ground. Included in succession planning are requirements around planning for skills replacement and the important need to be able to predict the costs of future benefit provision. As found by the Supreme Court in Mallon v Minister for Justice, 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. The Respondent  submitted that the intergenerational fairness ground must be reasonably viewed in its totality across the employment in both manufacturing sites and not in relation to its application in specific roles. In taking the intergenerational issue into account regard must be had not just to the availability of vacant roles but also to related issues arising from the provision of employment and its effect on intergenerational fairness such as: • The provision of secure permanent employment which will enable younger generations of employees to acquire a mortgage and set up a home (rather than short term temporary or fixed term employment which will be an inevitable consequence of older permanent employees working longer without a fixed retirement date as permanent headcount vacancies will not be created); • The minimisation of the risk of compulsory redundancies which will increase in likelihood if the Respondent is required to employ employees beyond the collectively agreed retirement age of 65 years. Compulsory redundancies will have a disproportionate effect on younger generations of workers who will not have the same accrued service levels as employees who have already reached the collectively agreed retirement date and who will not only be at lesser risk of compulsory redundancy but will also be more financially incentivised to avail of voluntary redundancies due to their length of service. The extension of working  life beyond the agreed retirement date will also undermine the existing agreed redundancy cap of earnings to normal retirement age which is currently 65.

 The above is consistent with the reasoning of Lady Hale in Seldon v Clarkson Wright & Jakes [2009] I.R.L.R. 26.  In that case, Lady Hale stated that intergenerational fairness applies to both younger and older workers, as follows: “[Intergenerational fairness] can mean a variety of things, depending upon the particular circumstances of the employment concerned: for example, it can mean facilitating access to employment by young people; it can mean enabling older people to remain in the workforce; it can mean sharing limited opportunities to work in a particular profession fairly between the generations; it can mean promoting diversity and the interchange of ideas between younger and older workers”. Achieving intergenerational fairness in the provision of secure well-paid employment and fair benefits for younger generations of workers is both a legitimate aim of any employer and the means used to achieve those aims (through the imposition of a mandatory retirement age for employees who have the benefit of secure employment throughout their career) are both appropriate and necessary to achieve that aim.

Balanced Age Structure The need to maintain a balanced age structure across the workforce and employ younger generations of workers with the ability to adapt to the changing automotive industry with its greater focus on electric and hybrid vehicles means that it is both a legitimate aim of the company to strive for greater balance in age structure and the means to achieve this are both appropriate and necessary to achieving this legitimate aim.

Section 34 (4) of the Employment Equality Acts 1998-2015 state; “…. 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- (a) it is objectively and reasonable justified by a legitimate aim, and (b) the means of achieving that aim are appropriate and necessary.”

The Respondent wishes to cite the following cases: Felix Palacios De La Villa v Cortefiel Servicios SA441/05  where the European Court of Justice held that a mandatory retirement age, which was used to absorb high unemployment and to promote better distribution of work among generations was an objectively justified aim achieved through proportionate means. The question posed by the Spanish referring Court to the European Court of Justice was “whether the prohibition of any discrimination based on age in employment and occupation must be interpreted as meaning that it precludes national legislation such as that in the main proceedings, pursuant to which compulsory retirement clauses contained in collective agreements are regarded as lawful, where such clauses provide as sole requirements that workers must have reached retirement age, set at 65 years by the national legislation, and must fulfil the other social security conditions for entitlement to draw a contributory retirement pension.” The court concluded in its statement that the answer to this question; “must be that the prohibition on any discrimination on grounds of age, as implemented by Directive 2000/78 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, pursuant to which compulsory retirement clauses contained in collective agreements are lawful where such clauses provide as sole requirements that workers must have reached retirement age, set at 65 by national law, and must have fulfilled the conditions set out in the social security legislation for entitlement to a retirement pension under their contribution regime, where — the measure, although based on age, is objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market, and — it is not apparent that the means put in place to achieve that aim of public interest are inappropriate and unnecessary for the purpose. “

The Adjudicating Officer is referred to the case of Irish Ferries v Martin McDermott EDA 1631. where a claim of discrimination on the age ground was not upheld by the Labour Court because the retirement age was collectively agreed with the union, SIPTU, and the employee was aware of the retirement age, having been advised of it through the company pension policy. It was cited in this case that: ” the court sees no merit in the complainant's argument that he had a legitimate expectation of working beyond age 65. The court finds that the complainant was at all times aware that he was a member of a pension scheme that required that he retire at age 65”

In Paul Doyle v ESB International DEC-E2012-086 the Equality Officer upheld the objective justification for the aim of ensuring retention, motivation and dynamism among current employees and the means of achieving the aim through the fixing of a mandatory retirement age was appropriate and necessary and stated; “I am satisfied that the Respondent wishes to establish an age structure among its younger and older employees in order to encourage the recruitment and promotion of young people and to facilitate good personnel management. I am therefore satisfied that the Respondent has established a legitimate employment policy with a legitimate aim for the reason why, at the latest, employees with the Respondent must retire at 65 years of age.”

The recommendations as set out In the Workplace Relations Commission Code of Practice on Longer Working SI600/2017 (WRC Code of Practice) with regard to ensuring that an employee approaching the mandatory retirement age is aware and allowed reasonable time for planning, arranging advice, and succession planning has been followed by the Respondent.

The Respondent is not able to facilitate the request for longer working as it seeks to ensure intergeneration fairness with age diversity in its workplace, the nature of the work within the category of employee and the requirement of the business did not provide the opportunity to extend the Complainant’s employment beyond the mandatory retirement age. In circumstances where the Employee was implementing significant redundancies during 2025 and had a hiring freeze for any new permanent roles, it would be inconsistent to allow employees to continue to work beyond their agreed retirement date.

 The Respondent relies on the case of Fuchs and Kohler v Landhessen in C‑159/10 & C‑160/1 where the Courts of Justice of the European Union “accepted that a measure that allows for the compulsory retirement of workers when they reach the age of 65 can meet the aim of encouraging recruitment and be regarded as not unduly prejudicing the legitimate claims of the workers concerned, if those workers are entitled to a pension the level of which cannot be regarded as unreasonable”. The Respondent further relies on the case of Mallon v Minister for Justice and others where the Supreme Court found at paragraph 76: 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, 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.

The Respondent further relies upon the protection afforded to it under section 34(4) of the Employment Equality Act 1998 - 2015 to fix a mandatory retirement age that is objectively justified as set out above and the means of achieving this aim of age diversity and intergenerational fairness is appropriate and necessary which the Respondent asserts it has met these requirements in its objective justifications as set out above and that the means of achieving these aims are proportionate in the circumstances.

It was submitted that the Respondent did not discriminate against the Complainant as alleged or at all in the claim form of the Complainant and the Respondent relies on section 34(4) of the Employment Equality Acts, 1998-2015 as set out above and it is requested by the Respondent that the Adjudication Officer so finds.

a)    THE LAW

The Employment Equality Act prohibit discrimination on the ground of age.

Section 6(1) of the Act provides as follows :

6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(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”),

The alleged discrimination in this case is that one employee is not allowed work because of his age and another is allowed work because of their age.

In Ireland there is no compulsory retirement age in the private sector, and an employee has a legal right to continue working regardless of their age. However, section 34(4) of the Acts permits an employer to fix different retirement ages provided they can show that it is objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

 Section 34 (4) states: “without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for retirement (whether voluntary 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.”

The test for objective justification is as set out in Donnellan v The Minister for Justice & ors [2008] IEHC 467. In that case McKechnie J held:

“National measures relating to compulsory retirement ages, are not excluded from consideration under [the Directive]. Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e., they should be proportionate”.

McKechnie J also held in this case that the imposition of retirement age should be individually assessed i.e., on a case-by-case basis.

Further McKechnie J held that where multiple reasons are given for a compulsory retirement age, it is enough if one or more amount to a legitimate aim: “where justification is sought, and multiple reasons are given, it will be enough that one or more of the justifications advanced, amount to a legitimate aim”.

The Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (S.I. 600/2017) sets out best industrial relations practice in managing engagement between employers and employees in the run up to a mandatory retirement age. It also sets out a number of potential legitimate aims for setting a mandatory retirement age in the first place. The Code of Practice identifies the following examples of what constitutes legitimate aims by an employer: 

·       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 work force;

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

·       Succession planning.

 These are policy aims that have been endorsed by the Courts as legitimate aims in a series of cases.  However, in Donnellan v The Minister for Justice & ors  McKechnie J put an emphasis on individual assessment when considering proportionality. McKechnie J said at para. 104: “The fact that individual assessment is possible is an important consideration. Where there are a large number of people involved and it would be impractical to test every person then it may be proportional to use some form of age-proxy. Conversely, where there are few people to assess, and such could be done relatively easily it would not be proportionate to use blanket proxies so as to determine personal characteristics.”

In Köhler v Land Hessen, (Case–159/10 and Case C–160/10) the ECJ held that cost considerations cannot in themselves constitute a legitimate aim within the meaning of Art 6(1) of the Framework Directive.

b)    BURDEN OF PROOF

Section 85A(1) of the Acts provides:

“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”. 

In McCarthy v Cork City Council EDA082 the Labour Court pointed out that at the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

In Melbury Developments v Arturs Valpeters EDA0917, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a Complainant " must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”.

It is not disputed between the parties that the Complainant retired at the Respondent’s mandatory retirement age on his 65th birthday. He had sought an extension to age 66. This had been denied. The Complainant’s employment ended because of his age.

I accept from the facts of the case that the Complainant has established primary facts of sufficient significance to raise an inference of discrimination. The burden of proof then shifts to the Respondent to rebut the presumption of discrimination. The Respondent must establish that a contractual retirement age of 65 formed part of the Complainant’s terms and conditions of employment; that the mandatory retirement age serves a legitimate aim or purpose; and the means of achieving that aim or purpose was proportionate in the individuals circumstances.

c)     WITNESS EVIDENCE

The Complainant Representative set out with the Complainant his case in his contribution to the Hearing and stated he felt the decision to not allow the Complainant work on was unfair, that he had an excellent record of productivity for 19 years, that the contractual term was ambiguous, that the contract did not specify what age you retire, that in 2005 when the Complainant signed the contract he cant recall the company handbook and that he had requested to work for one more year in January 2024. He advised the pensions scheme allows you to work beyond 65 in exceptional circumstances and the company did nothing to consider this. He believed there was no test or reasoning applied to the decision not to allow the Complainant continue work and he got no formal reply to his grievance only general terms. He felt there was a disregard for the current legislative transition underway.

The Complainant advised that the last 4 months of work were the least enjoyable and that his colleagues had hoped he would stay on, that he was on social welfare since leaving, that he had trained a “young fella” into his job, that he was in good health, that he was aware the Respondent was an equal opportunity employer, that he had worked since he was 14 and that he only wanted to work for one more year.

The Complainant was cross examined on his evidence by the IBEC Representative, Ms. Sophie Crosby and agreed he had recommended the company to others, that his daughter was employed there, agreed he had got the benefit of terms agreed between SIPTU and the Respondent over time, was asked did he raise any exceptional circumstances to justify staying beyond 65 and he advised he was told to raise a grievance by HR. He advised he was not asking for a lot and was a good Operator with no issues. The Complainant was asked to agree that while discussions were ongoing at a national level at the time about a change none was agreed and the Complainant agreed with this. The Complainant stated people were now hired on 4 year temporary contracts and while lots of people got promoted before Covid none have been promoted since Covid. The Complainant agreed it was important young people got a chance to grow their skills and stated Kostal has all ages employed. The Complainant agreed it was important young people got permanent jobs. The Complainant was asked to agree that if young people were less likely to be promoted that they would be more likely to leave and he replied if they were happy they were more likely to stay. The Complainant was asked if the company did not know when someone was going to retire would that not be a difficulty and the Complainant stated that in most cases the 65 year old is better experienced that a 45 year old.

On redirect the Complainant confirmed to his Representative that he only wanted to work till 66, that he loved working, that he wanted to stay in the workplace, that he had requested a one year extension specifically, that he had no problem if it was a fixed term contract and that the pension policy does not define what the exceptional circumstances are to stay beyond 65. He stated older people have the entitlement to work too.

Ms. Noreen Keating, HR Business Partner, gave evidence she was employed for 30 years with the Respondent, that she handled many retirements and that there had been 17 already in 2015,and  that all retired at 65, that they have the same retirement policy across both sites, that the Union have never sought an extension of the retirement age beyond 65, that the Complainant was the first to request to work beyond 65, that staff had transferred from Abbeyfeale to Mallow due to restructuring, that no permanent new staff were hired in last year, that about 22 temporary staff were hired in April 2025, that none made permanent, that they have an internal promotion policy and do promote  a lot, that there is a ban on indirect recruitment, she advised the following promotions

2022   36

2023 39

2024 20

2025 there are a no of open positions.

She advised that due to a recruitment freeze they had to upskill and promote internally.

Ms. Keating was cross examined by Mr. Long of SIPTU and agreed there was an equal opportunity clause in the Company/Union agreement. She confirmed the agreement had not changed since 2001. She advised from time to time some changes were discussed with the Union.  Ms. Keating confirmed she was aware of the discussions on the new retirement Bill but no drastic changes were involved and that she was aware that the state pension age had changed. Ms. Keating outlined that this was the first request to work beyond 65 and that she had used the collective agreement as the ground in her justification for not giving the Complainant a fixed term contract, that she had never met the Complainant directly on the issue and communicated by email with him. She explained the process of retiring at 65 had been accepted up to now by all.

On redirect by Ms. Crosby for the Respondent, Ms. Keating confirmed the Trade Union had never requested a change to the pension age since the introduction of legislative changes and that no comparator had been quoted to justify the complaint.

Ms. Margaret Kelly, HR Business Partner for Abbeyfeale, gave evidence that there were two separate collective agreements for the two plants but they had the same pension plans. She outlined there were some difference in overtime and sick pay. She advised that the retirement policy was communicated to all staff in 2017 and that the Union had never requested a change to the retirement age. She confirmed that since 2015 there had been 49 retirements in Abbeyfeale and none beyond 65. She advised of a decline in orders and there was redundancies in the plant at the moment.  She outlined the large number of staff reductions/early retirement over the last few years and that the Union would not agree to different retirement ages in the two sites. She cited intergenerational fairness as a key policy consideration along with other considerations and that the job was mainly standing and was difficult to find seating roles for people who cannot stand for the full shift. She advised there was a lot of lifting, that most people were in their 50’s, very few were in their 20’s, that there had been a lot of internal promotion and the company try to recruit internally for promotions. She advised the last permanent employee was hired there in 2022 and 7 fixed term employees were hired in 2024.

Ms. Kelly was cross examined by Mr. Diarmuid Long of SIPTU and agreed she had no involvement in the Complainants retirement and was not involved in his grievance process and that she would have been asked about general retirement policy but not the specific request of the Complainant. She was questioned about the retirement age in the Abbeyfeale company Union agreement and stated it was silent but applied the same as Mallow. She advised the company had taken on 20 new operatives in the last few weeks. She confirmed there was no redundancies in Mallow. She confirmed that the last major investment was in 2016 and they never had the issue about retirement age in the Abbeyfeale plant. Ms. Kelly advised there may be difficulty with roles if the age of retirement is extended and there would be an increased cost of Life cover and redundancy cost if necessary.

Ms. Kelly confirmed on redirect that SIPTU had not sought a change to the retirement policy at the Abbeyfeale plant and that it would be difficult to find stationary roles if required.

Mr. Michael Quinn, Manufacturing and Logistics Manager, gave evidence he was with the company 28 years and is responsible for operations on both sites. He advised he had 2 production Managers reporting to him. He advised the plants handle different products and between 2014 and 2020 there were changes in the VW system and at one stage they lost 30% of their business in one go. He advised output was 3 times higher than 15 years ago, that products are done in line from start to finish, that it’s a team environment and everyone needs to be on the same page. He advised historically the retirement age of 65 was never questioned. He said he found that as people got older there were more medical/illness issues and more absenteeism. He stated being fit was key, that you had to keep up with the process and targets had to be achieved. He considered that the Irish plants were at a disadvantage as they were considered to have more indirects than other plants. He advised he liked internal promotions as they know the people, they were committed to the company and there was a high cost to bringing someone in from the outside. He advised it was a tough physical job and you would go home tired. He said young people were required to work with the technology, were more willing to take a chance, were more used to working with technology in their day to day lives and you needed to hire young people to avoid stagnation.  He does not see the company hiring lots of people, that by fixing a retirement age people have something to look forward too with certainty, that he operates on a 20 week order visibility and needs to know who is staying or going. He advised he needed to plan for succession and that people should not be under societal pressure to keep working. Mr. Long asked Mr. Quinn to agree there was a high training cost if you hire from outside and that it would have been more cost effective to give the Complainant a contract for one year. Mr. Quinn stated it would not be practical to change general policy based on one person. He stated the risk of absence increases and the person may not be as open to change as a young person. Mr. Quinn was asked is it not more cost effective to keep some one on than hire. Mr. Quinn stated that the ethos of the company is long term employment but young people are more open to apps and messaging interfaces from machines and can learn them better and that some older people need more support with digital systems and take more time off for training and that younger people come in with those skills already. He advised the best workforce is a balanced one.

In closing the Respondent Representative relied on the retirement clause in the collective agreement, that the Complainant was bound by the clause, that the pension age was 65 as set out in the pension booklet, that the Union had not made a claim to change the pension age, that there were no exceptional circumstances to consider, that the Complainant did not site a comparator, that the Respondent had a published and well known retirement policy, that it had a number of objective justifications for having a retirement age of 65, that it had and needed a common policy across both sites and it needed a balanced age structure in the plant.

d)    THE BACKGROUND FACTS

The Complainant's contract of employment is silent on retirement age.

The Respondent had in place a provision for a normal retirement age of sixty-five in its collective agreement in the Mallow Plant and that acceptance of the terms of the agreement between the Respondent and SIPTU were part of the Complainants contract of employment. The company/ union agreement sets the retirement age automatically at 65.  The Company/Union Agreement refers to “equal opportunities” and notes that the company will not discriminate based on age.

This is the first occasion on which the Respondent had to defend its objective justifications contained in its Retirement policy and this was prompted by the Complainant’s request to continue working beyond the normal retirement age. Three objective justifications are set out in a very basic and limited way in the Policy.

In dealing with the Complainants request pre-retirement the Respondent primarily relied on the collective agreement and custom and practice and gave very little, if any, considered assessment of the Complainants capability to work for a further year. This is very significant in the final assessment of this complaint.

No inference detrimental to the Complainant’s case can be drawn from the evidence that the Respondent engages for collective bargaining purposes and have agreed a normal retirement age with the Trade Union involved and neither that the Trade Union has sought not to amend that agreement. No negotiations or request to amend this clause was brought to the attention of the Adjudicator. The Complainant, however, has brought an individual complaint under the Act and at no point in these proceedings has he sought to upset any collective agreement in place within the Respondent.

It was not contested that the Complainant performed all aspects of his job satisfactorily, and without giving rise to any health and safety concerns, up until the date of his retirement. No circumstances particular to the Complainants role were brought to the Adjudicator’s attention that would preclude the Complainant from doing the job for a further year.

From the date the Complainant set out his desire to stay for a further year of employment beyond 65 (January 26th 2024) to the date he retired  (May 29 2024) the primary justification set out by the Respondent in the grievance process to justify not  allowing the Complainant work beyond 65 was that the retirement age was part of a collective agreement that applied to the Complainant and that his pension (along with other eligible employees) commenced at 65. It also made reference later on in the appeal process to its Retirement Policy and the basic objective justifications set out in that policy.

The Respondent has a “Retirement Procedure “Policy which is reviewed annually. It sets out the following as its three objective grounds for justifying the mandatory retirement age of 65;

1.    Maintaining the dignity of the individual (avoiding capability issues)

2.    Succession planning and intergenerational fairness (retention & promotion of younger personnel through the business).

3.    Creating a balanced age structure in the workforce.

The Respondent has, at the Hearing, set out in detail a greater number of objective justifications (outlined below) for maintaining its stance that it is not acting in a discriminatory manner by having a fixed retirement age of 65. 

In the first response (denial) of his request to work beyond 65 no mention of any objective grounds were made in denying the Complainants request. The response just focused on the term in the Collective Agreement.  In the second denial of his request very little mention is made of the stated objective grounds but relied mainly on the Collective Agreement. It is not fully clear to the Adjudicator how much emphasis or discussion took place between the parties regarding these stated grounds during the months prior to the Complainant retiring. It appears that it was very little.

The Respondent conducted no individual assessment (in any shape or form) of the Complainants capability to stay working for a further year. However, individual assessment  to continue working is not considered mandatory where there are large volumes of retirees  and a more common justification for having a fixed retirement age is acceptable in these certain (undefined) circumstances.. However, individual assessment is stated as appropriate in other circumstances. See Donnellan v The Minister for Justice & ors  McKechnie above. This complex legal position is central to this case.

The Complainant had not been requested to undergo medical or physical assessment before any decision was made in response to his request to work beyond the normal retirement age, nor does it appear that he was asked would he be amenable to such assessments being conducted should his request have been granted or whether he would regard that as an affront to his dignity.

No examination of offering the Complainant a fixed term contract for a year took place. It was not disputed that there was a requirement for the work conducted by the Complainant.

No evidence was advanced at the hearing to the effect that the Complainant could not have deferred drawing down his occupational pension until the conclusion of any extended period of employment with the Respondent or that if he had to draw down his pension at age 65 while continuing to work that this would be detrimental to him.

f) EXAMINATION OF OBJECTIVE JUSTIFICATIONS

The basic facts of this case are not in dispute. The legal point to be decided is whether the Respondent discriminated against the complainant by imposing on him a mandatory retirement of 65 years of age. The Respondent is relying on Section 34(4) of the Act which allows for the fixing of a retirement age under certain circumstances. These circumstances (objective reasons) are examined below.

Existence of a contractual retirement age

The Complainant’s submission that his contract did not stipulate a retirement age was not disputed by the Respondent however it did contain a clause that the employment relationship would be bound by the collective agreement which stipulated a mandatory retirement age of 65.

The Complainant confirmed at the adjudication hearing that he was aware of the pension scheme. The Complainant confirmed that he was aware of the normal retirement age of 65.

In Connaught Airport Development Limited T/a Ireland West Airport Knock v John Glavey EDA1710, the Labour Court stated that section 34(4) of the Acts, prima facie, allows for the fixing of “. . . a retirement age without contravening the prohibition of discrimination on grounds of age. The jurisprudence of the CJEU on the circumstances in which compulsory retirement is saved by Article 6 of the Directive is relevant only if the Court finds that a retirement age was in fact fixed by the Respondent and that the retirement age applied to the Complainant”. The Court held further that: “It seems to the Court that this custom and practice test can appropriately be applied in considering if the policy of an employer took effect as a contractual term or a condition of employment. The terms of a pension scheme may also be relied upon as either implying a term as to retirement or by incorporating the terms of the scheme into the contract. A crucial consideration in addressing the question of incorporation or implication is whether the employee knew, or ought to have known, of the term contended for.”

Therefore, the agreed mandatory retirement age of 65 was an implied term of the Complainant’s contract of employment, through the collective agreement.  In all the circumstances I am satisfied that the Respondent had a contractual retirement age of 65 in respect of the Complainant and that the Complainant knew or ought to have known of its existence.

The Plant have been in operation since 2001 and the established custom and practice is that staff retire at 65. The Respondent has in place a Retirement Policy that sets out 65 as the mandatory retirement age based on set out objective reasons. This custom and practice has never been challenged until now and therefore it is reasonable to assume that staff having to retire at 65 was widely accepted as custom and practice and was never challenged in a structured Trade Union representation environment.  

Does the retirement age of 65 serve a legitimate aim and was the means of achieving that aim proportionate in the circumstances?

A mandatory retirement age is discriminatory on age grounds unless it is objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.

As stated by the Labour Court in Bord na Mona Plc v Kenny, EDA2232, “objective justification for interfering with an individual’s employment rights requires a proportionality assessment to balance conflicting interests that must be decided on the facts of each case”.

The Respondent set out that the operation of a mandatory retirement age of 65 was objectively justified by reference to a number of lawful aims. These were outlined in detail and contained herein in the Respondent’s submission and evidence to the Hearing and in the Company Retirement Policy published since 2019 and reviewed annually. In the normal course of events the aims set out by the Respondent would qualify as reasonable and proportionate to justify a mandatory retirement age. However, primarily because it never had to elaborate on these aims before due to no request to work beyond 65 being received, these aims have not been fully articulated or tested between the Company and the Trade Union and its staff prior to the Hearing of this complaint. As a result,  the Complainant was not aware of them, in any substantive way, prior to the Hearing into his complaint.

Succession Planning

The Respondent stated that knowing when staff will retire is a key element of succession planning and to schedule trainingof new staff. Allowing one Worker to work for a further year, is a decision that would not have a major effect on this issue.

Putting in place an age balance in the workforce

With regard to the workforce planning and age balance,in Transdev Light Rail Limited v Chrzanowski EDA1632 the Labour Court held:

“The Court accepts that it is not unreasonable for employers to have a legitimate interest in workforce planning. In Rosenbladt v Oellerking Gebäudereinigungsge GmbH (Case C-45/09) [2011] I.R.L.R. 51 the CJEU examined the justification of a retirement age contained in a collective agreement, it held:-"By guaranteeing workers a certain stability of employment and, in the long term, the promise of foreseeable retirement, while offering employers a certain flexibility in the management of their staff, the clause on automatic termination of employment contracts is thus the reflection of a balance between diverging but legitimate interests, against a complex background of employment relationships closely linked to political choices in the area of retirement and employment. ... It does not appear unreasonable for the social partners to take the view that a measure such [the provision containing the retirement age] may be appropriate for achieving the aims set out above".

I note that the Respondent is undergoing a serious business review and that compulsory redundancies are possible. The Respondent submitted that by recruiting  a younger workforce they are more open to technology and change and that not having vacancies for younger staff would impact on their staff capability to deal with modern technology.  I accept that the Respondent wished to progressively retire, recruit, and promote staff. I, therefore, accept the Respondent’s position that it had to plan staff succession to ensure that the staffing arrangements are adequate. I further accept the Respondent’s evidence that there were no exceptions to its retirement policy since its commencement date and that to change now in a “forced” fashion would cause some significant disruption to staff planning . I am satisfied that if a mandatory retirement age was not adhered to, this would compound the age imbalance in the plant.

The Respondent’s staffing requirements have changed and the Respondent need to adhere to its general retirement policy to create a balanced workforce which also ensure that the Respondent can effectively manage the departure of staff and recruitment of a new cohort with skills that meet the needs of the future.

Health & Safety Concerns

Regarding the physical requirements of the role and the health and safety aspect, I accept the Respondents submission that the role is physically demanding but there was no assessment that the Complainant was not capable or a higher risk by being a year older to complete the duties demanded by the role.

I note that the Respondent did not seek medical opinion of a specialist in occupational medicines/safety assessment to ascertain whether the imposition of a retirement age on the Complainant was justifiable as a genuine and determining occupational requirement.

However, the CJEU and the Labour Court have accepted that physical capacity deteriorates with age and that setting a retirement age is an objective and legitimate means of protecting the safety of staff, such as in the case of Irish Ferries v McDermott EDA1631 where Mr McDermott, a docker who had challenged the imposition of a retirement age of 65, argued, amongst other things that he was in good health and capable of discharging his duties. The Respondent in that matter “set out good grounds that objectively justify the selection of those ages for this category of staff. Those grounds include the arduous nature of the work which becomes increasingly difficult with age”.

In Bord na Mona Plc v Kenny EDA2232, it was stated that “It is an established fact that people’s ability to perform physically demanding work deteriorates with age, as a consequence of the natural effects of age on the human body.”

The Code of Practice on Longer Working includes the legitimate aim of “personal and professional dignity (avoiding capability issues with older employees)”. In the Mc Dermott case, holding in favour of the employer, the Labour Court focused on the objective justification, reasonableness, the need to preserve the dignity of the employee, and the fact that a pension scheme was in place to compensate the employee. It held:

“The Court finds that terms of the pension scheme were arrived at through collective agreement with the relevant trade unions. The Court further found that the retirement age has been universally applied to this category of staff whose work is acknowledged by both sides to be arduous and physically demanding.

The Court further finds that the Respondent has set out good grounds that objectively justify the selection of those ages for this category of staff … The setting of a maximum working age of 65 at this time ensures that staff are not exposed to the embarrassment of finding themselves incapable of discharging their duties and being retired in that context rather than with dignity and respect.” 

To encourage the Recruitment and Promotion of Young People.

The establishment of a legitimate aim is only one step of the process and therefore it remains for consideration whether the retirement age of 65 is appropriate and necessary in respect of the Complainant. As noted above, a measure may indeed pursue a legitimate aim but may not pass the test of proportionality in any individual case. As stated by McKechnie J in Donnellan: “the measure must go no further than is required to reach the legitimate aim and must do so in the least restrictive way possible” (at [98]). A useful summary of the EU caselaw in relation to age discrimination is the persuasive authority from the UK Supreme Court in Seldon v Clarkson, Wright & Jakes [2012] UKSC 6 in which Lady Hale notes:

“It is one thing to say that the aim is to achieve a balanced and diverse workforce. It is another thing to say that a mandatory retirement age of 65 is both appropriate and necessary to achieving this end . . . [t]he means have to be carefully scrutinised in the context of the particular business concerned in order to see whether they do meet the objective and there are not other, less discriminatory, measures which would do so” (per Lady Hale at [62]).

I will deal with the appropriateness of these objective justifications in my conclusions.

G) CODE OF PRACTICE

The Industrial Relations Act 1990 (Code of Practice on Longer Working ) (Declaration) Order 2017 (S.I. 600/2017) sets out best practise for managing the engagement between employers and employees in the run up to the retirement age within the employment concerned. The Code of Practice references notification procedures, the carrying out of objective assessments in the context of justifying the retirement and access to an appeals mechanism.

There was a number of meetings held which would give both the employee an opportunity to advance his case and allowing the employer to consider it. There was evidence the Respondents written retirement policy was provided to the Complainant in the run up to his retirement. There was evidence he was represented and had the opportunity of an appeal to the decision not to continue his employment beyond 65

 In light of the submissions and evidence presented, I find that the Respondent did comply (in part) with the principles suggested by the Code of Practice in respect of the Complainant’s request to work longer. .However, I find that no detailed assessment of the Complainants case took place to assess his individual capability to continue working for one more year and instead the Respondent primarily relied on custom and practice and the clause in the collective agreement. This does not comply with the general aim of the Code.

.  H) GENERAL OVERALL CONCLUSION

There was no dispute that that a retirement age was provided for in the collective agreement between the Respondent and the Trade Union and it was known to the Complainant.  This was an implied term of employment.

It was not disputed that that the Respondent has applied the policy consistently in the past, that it was custom and practice and no other employees have requested to work beyond that retirement age at the time of the Hearing.

The Respondent primarily relied during the request process on the fact that the normal retirement age had been collectively agreed with its trade unions, neither of which had ever indicated that it wished to increase the normal retirement age.

 The Adjudicator finds that prior to the Complainant making his application the Respondent had set out in a written retirement policy its objective justifications for a mandatory retirement age since 2019 and this policy was reviewed annually. The distribution of this policy was not explained and is not known. However, this policy made no reference to a procedure for assessing any request to continue working beyond 65.

 Following receipt of the Complainant’s application, the Complainant was initially advised that his application to work beyond 65 was refused due to the clause in the Collective agreement stating a mandatory retirement age of 65.

In his Appeal Hearing further grounds for refusing his request were provided to the Complainant , including the justifiable grounds contained in the retirement policy, but it appears these grounds were not known prior to the appeal by the Appeal Officer.

Taken collectively, the Respondents justifications set out above for a mandatory retirement age provide reasonable and objective justification for the Respondent’s imposition of a mandatory retirement age. 

My assessment of the above legal information is that a least one sound justification is required to support a mandatory general retirement age (which the Respondent has at least in this case) and an individual assessment is required for just one person seeking to work beyond the set retirement age even where there are stated general and sound justifications in place for having a mandatory retirement age. Should the individual assessment (possibly including a medical and physical assessment based on the requirements of the job and subject to insurance etc being sorted) not support the application then an Employer can do no more but apply the objective justifications. However, where it shows no risk in continuation of working then the person should be allowed continue working for a defined period (all things being equal), even where there is a sound general justification. I accept this assessment may appear to be at cross purposes but that is my interpretation of where the general and legal situation is at, at present.

 Based on the evidence presented to the hearing, I determine that the Respondent acted in compliance with Section 34(4) of the Act and that the generic retirement age it applied in this case was objectively and reasonably justified by legitimate aims but the means of achieving these aims were not appropriate.  Given this was the first and only applicant to seek to work longer hours  I find that the Respondent did not comply with the Act in assessing the Complainants request (and the aims of the Code of Practice on Longer Working) and should have conducted an individual assessment of the Complainant to work for a further year, either as a continued permanent employee or on a fixed term contract. It appears to the Adjudicator that the Respondent gave too much credence to the existence of the clause regarding a mandatory retirement age in the Collective Agreement and not enough careful assessment of the individual rights under anti discrimination legislation and his capabilities to work a further year.

Given the complexity and uniqueness of this case to the Respondent, who is a well regarded employer, I feel it appropriate to comment further on the situation to elaborate on my decision due to the complexity involved.. I have stated that the Respondent has set out at the Hearing what would normally be acceptable justifications for having a set retirement age but that, in this case, it failed to give adequate consideration or assessment to the individuals situation and request to work beyond 65 for a year. It is possible these justifications for a mandatory retirement age could pass any future scrutiny if elaborated on in more detail in its Retirement Policy and where there is a large block of retirees but this would be assisted if the Respondent amends its Retirement policy to include a fair assessment process for any future individual request to work beyond 65 for a year. Given this is the first ever request to work beyond 65 for a defined period in a company with over 700 staff and operating since 1981, I do not see the inclusion of this suggested change, for an individual application, to the Retirement Policy as a major burden on the Respondent given there were no other applicants for longer working to date. However, this is a matter for the Respondent to consider and these observations do not form part of my Decision.

My overall conclusion is that the Respondent has objective grounds for determining a set retirement age but that that their Retirement Policy is inappropriate and should give more weight and consideration to any request from any individual staff member to remain in employment for a further year, in some form of employment (permanent or fixed term) , and that a process and “tests” for assessing a request should be contained (well in advance of the retirement date) in their Retirement Policy and comply with the aims of the Code for Longer Working to ensue each request is fairly considered and they are not discriminating on the age ground.

The Adjudicator is satisfied that the Complainant was discriminated against on grounds of age in contravention of the Act and finds that his complaint is well founded. Taking the facts that the Respondent has set out legitimate objective grounds for a set retirement age but failed to assess the Complainants request adequately against those grounds, I determine that an award of compensation of €15,000 is appropriate in all the circumstances and based on precedent cases.( CA-000-65601-001)

I find that the Respondent did engage in a prohibited act and the complaint is well founded but make no award under this complaint as it is basically a duplicate complaint to above.  (CA-000-65601-002.)

Age Discrimination

Complainant

Respondent

Parties

John  Hosey

Kostal Ireland Gmbh

Representatives

 SIPTU

 IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00065601-001

26/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00065601-002

26/08/2024

The Complainant was employed as a Production Operator and was required to retire at the age of 65. The Complainant submitted two complaints under the Act. He contended that he was dismissed for a discriminatory reason (age) and that the Respondent engaged in a discriminatory act (forcing retirement) based on age. Both complaints arise from the same set of circumstances and can be dealt with as one.

The case concerns the enforced retirement of the Complainant at age 65 years, amounting to a discriminatory dismissal.

The Complainant commenced employment with the Respondent on May 30, 2005, as a Production Operator.

The Complainant had an excellent record in terms of time, attendance, and performance with the Respondent.

The Complainant's contract of employment is silent on retirement age. However, the contract refers to a company union agreement setting the retirement age at 65.  Said Union Agreement also refers to “equal opportunities” and notes that the company will not discriminate based on age. This has not been the Complainant's experience

The company’s retirement procedure sets a retirement age of 65 and cites objective justifications such as maintaining dignity, avoiding capability issues, succession planning, intergenerational fairness, and a balanced workforce age structure. However, none of these justifications were applied to the Complainant. At the time of retirement, the Complainant had no capability issues, did not hold a promotional post impacting succession planning, and his continued employment posed no issue to age balance. While the procedure claims compliance with S.I. No. 600 of 2017, the company failed to follow its guidelines, namely, to fairly consider extension requests, explore fixed-term or flexible arrangements, and provide objective justification as required under the Employment Equality Acts.

The Pension Plan for the company provides that: “In normal circumstances you will retire on your 65th birthday, your Normal Retirement Date. With the Company's consent, you may retire early if you are over age 50, or at any time if you are in ill health. In exceptional circumstances you may also be allowed to defer your retirement beyond your Normal Retirement Date.” The pension plan does not clarify or define what constitutes "exceptional circumstances". However, it clearly outlines that working beyond the age of 65 is allowed for in the pension plan.

On January 26, 2024, the Complainant submitted a request to Mr. Liam Linehan, Head of HR, to continue working beyond the age of 65 until he turned 66, and inquired about the company’s position regarding the new retirement laws.

 Subsequently, on February 2, 2024, Noreen Keating of HR responded by simply restating the contractual retirement age of 65, without addressing the Complainant’s query regarding the company’s policy in light of new retirement laws.

 On February 21, the Complainant informed Ms. Keating that he wished to appeal the company’s decision regarding his retirement. On February 26, the company responded, advising him to submit a grievance to his immediate supervisor, outlining the reasons for his appeal.

On 29th February, the Complainant’s supervisor, Mr. Keane, wrote to Ms. Keating to confirm that a grievance meeting had taken place, during which he outlined the company’s position on the retirement age to the Complainant. Notably, this correspondence does not include any objective justification for the company’s refusal to consider extending the Complainant’s retirement beyond the age of 65.

Against the backdrop of ongoing legislative reform concerning retirement age in Ireland, specifically, the forthcoming Employment (Contractual Retirement Ages) Bill 2025, which aims to restrict mandatory retirement below the State Pension age of 66 unless objectively justified, SIPTU Shop Steward Mr. O’Sullivan emailed Mr. Keane on 26 April, confirming that the Complainant had raised a grievance and requesting a grievance meeting. Following the meeting on 30 April, Mr. Keane responded by email, stating that the company’s retirement age remains 65. He also noted that the company pension plan is contracted on the basis of retirement at 65 and referenced the government’s proposal to increase the retirement age to 66 as being under discussion but not yet enacted. The response from the company to the Shop Steward is absent of any objectified justification for the company not to consider the Complainants request.

 The Complainant was forced to retire on the May 29 2024.

On July 3, 2024 SIPTU wrote in error the employees line manager. On July 4 2024, SIPTU wrote to Ms. Keating in HR, stating that the Complainant had requested to continue working beyond the age of 65. The union highlighted the employer’s obligation under S.I. No. 600/2017 to give due consideration to such a request and to provide an objective justification for any refusal. The letter noted that no such justification had been provided. On that basis, SIPTU informed the employer that it believed the Complainant had been discriminated against on the grounds of age and that the matter was being referred to the Workplace Relations Commission, as the union viewed the company’s actions as constituting discriminatory dismissal.

On 19 July 2024, Ms. Keating responded to SIPTU, outlining the company’s retirement policy, which specifies a retirement age of 65. The response also referenced the company’s union agreement, which similarly includes a retirement age of 65. However, the response failed to provide any objective justification for requiring the Complainant to retire at that age.

The company did not issue a formal written outcome in response to the Complainant’s request or grievance. The closest indication of the company’s reasoning is found in its retirement procedure, and in a letter sent to the union, in the retirement procedure, the company outlines a number of 'legitimate aims' to support its retirement policy. These include: a) Avoiding capability issues b) Maintaining employee dignity c) Succession planning d) Promoting intergenerational fairness e) Ensuring a balanced workforce age structure These same reasons are reflected in the company’s correspondence to the union, which also refers to current and future business needs, the existing union agreement, and the structure of the company’s pension scheme as the basis for its decision.

The dismissal of the Complainant at age 65 was not objectively and reasonably justified by a legitimate aim as the above list does not apply to the Production Operator in Kostal Ireland GmbH. For instance, a) Maintaining employee dignity, For example, the company’s reliance on this as a legitimate aim is not applicable in this case. The Complainant has never experienced any physical difficulties in performing his duties and has consistently met the required performance standards. Furthermore, manufacturing in the context of electronic and mechatronic products is not inherently hazardous or physically strenuous, and therefore does not support the argument that continued employment beyond the age of 65 would compromise the Complainant’s dignity.

In the case of b) employee dignity, the Complainant confirmed he would willingly cooperate with a medical assessment. This could not be considered as eroding his dignity especially as the alternative would be applying for job seeker's benefit, unnecessarily.

As for c) d) and e) - Succession planning, intergenerational fairness or ensuring a balanced workforce age structure, is not realistic as the post held by the Complainant is not a promotional post.

Discrimination on grounds of age is prohibited under Council Directive 2000/78/EC. The question of whether the imposition of a mandatory retirement age is permissible under EU law has been considered in several cases. It is now well established that the mandatory retirement age must be objectively justified having regard to public policy considerations.  In Ireland there is no compulsory retirement age, and an employee has a legal right to continue working regardless of their age. However, section 34(4) of the Employment Equality Acts 1998-2015 (“the acts”) permits an employer to fix different retirement ages provided they can show that it is objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

The test for objective justification is set out in Donnellan v the Minister for Justice and ors [2008] IEHC 467. In that case McKechnie J held: “National measures relating to compulsory retirement ages, are not excluded from consideration under [the directive]. Any discrimination with regards to age must, as put by that directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e, they should be proportionate”. McKechnie J also held in this case that the imposition of retirement age should be individually assessed i.e. , on a case-by-case basis. The Respondent in this case has not met this bar.

The Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (S.I. 600/2017) set out the best industrial relations practice for managing and engagement between employers and employees in the run-up to retirement age within the employment concerned. In the Complainant's case, it clearly states in the company’s pension plan that working beyond 65 is possible, therefore, providing a legitimate expectation. The Respondent applied mere lip service to the requirements under the code. As per McGrath V Focus Ireland (ADJ- 00018823); “It was not necessary to use the blunt indicia of age when fitness could have been regionally assessed in other ways.” The Complainant would have willingly attended annual medical assessments in order to continue in employment. The test of whether a retirement age is objectively justified as set out in John O'Brien v PPI Adhesive Production LTD [ADJ-00009914] as follow: “1. What was the de facto situation in the Respondent's company at the time? 2. Do the measures in relation to mandatory retirement seek to achieve a legitimate aim? 3. Is the aim legitimate in the particular circumstances of this case? 4. Are the means of achieving the aims proportionate?” This test was not met by the Respondent in this case.

As stated by the Labour Court in Bord na Mona plc v Kenny, EDA2232, “[objective justification for interfering with an individual's employment rights requires a proportionality assessment to balance conflicting interests that must be decided on the facts of each case.” In respect of the Complainant, the Respondents submitted that the Complainant's retirement at age 65 was necessary and proportionate to serve many of the aims stated in The Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (S.I. 600/2017). However, in the instant case, aims a) – d) as per above, are not applicable.

The establishment of a legitimate aim is only one step of the process and therefore the retirement age of 65 is not appropriate unnecessary in respect of the Complainant. But stated by McKechnie J in Donnellan: “the measure must go no further than is required to reach the legitimate aim and must do so in the least restrictive way possible” The Complainant has an excellent work record, and was entirely capable of working beyond age 65, and there was a continuing need for the work performed by the Complainant. Therefore, the Complainants compulsory retirement at age 65 constituted an act of discrimination within the meaning of section 6 of the acts.

In the WRC cases of Valerie Cox v RTE [ADJ-00006972] and Anne Roper v RTE [ADJ-00019084] the Respondent identified in its staff manual a ‘normal’ retirement age of 65. However, the court held this was not a compulsory retirement age, and both complainants were successful in their claims of discrimination on the grounds of age. Likewise, the Respondent in this case has a retirement plan stating ‘normal’ and not a compulsory, retirement age.

 If the Respondent seeks to use the objective justification of interface generation fairness, we again refer to the adjudication officer in Anne Roper, who relied upon the UK Supreme Court decision of Seldon versus Clarkson, Wright and Jakes. The Supreme Court in the UK confirmed that intergenerational fairness must not be confined to young people. The Adjudication Officer in Anne Roper stated the Respondent should have considered available options to include a temporary assignment for a fixed term. This was not considered by the Respondent. In Sales Advisory V DIY [ADJ- 00013899] the WRC, finding for the complainant in that case concerning compulsory retirement, recognised the need for the Respondent to consider alternative options. The adjudication officer stated: “The regrettable fact in this case is, however, that the parties were not minded to sit down and tease out unless absolute alternative to automatic termination at age 65”. The Respondent in this case would not engage with the appellant issuing diktat only. In the instant case, the Respondent parroted the same aims without meeting the criteria of the Act or code.

 The Respondent in this case did not establish: (a) a contractual retirement age of 65 formed part of the complainant's terms and conditions of employment; (b) that the mandatory retirement age serves to legitimate aim or purpose; and (c) the means of achieving that aim or purpose was proportionate. Despite multiple reasons being given for a compulsory retirement age, none amount to a legitimate aim. In terms of redress, having regard to the requirement under Article 17 of the Framework Directive as interpreted by case law that the sanction be “effective, dissuasive and proportionate” the Complainant is seeking the equivalent of 104 weeks’ pay.

The within claim by the Complainant against his former employer, is brought under Section 77 of the Employment Equality Acts, 1998 – 2015 lodged with the WRC on 26 August 2024  As both claims 001 and 002 are identical, the Respondent requests that the claim be merged into a single claim. Without prejudice the Complainant’s claim of discrimination necessitates the discharge of the burden of proof that there is a prima facie case to answer by the Respondent as prescribed by section 85A of the Employment Equality Acts, 1988-2015. The following submission is made strictly without prejudice basis to the Complainant’s obligation to discharge this burden of proof.

Background to the Respondent. KOSTAL Ireland GmbH has two manufacturing plants in Ireland based in Abbeyfeale, County Limerick and Mallow, County Cork manufacturing automotive products for the car industry. There are 432 (April 2025) people employed on the site in Abbeyfeale which was established in 1981 (down from 550 in 2024) and 306 people on the Mallow site which was established in 2001.

The Complainant commenced employment in the position of Production Operator on 30th May 2005 at the Respondent's Mallow site and continued to work within the business until his retirement on 29th May 2024. Between 2 October 2006 and 25 November 2007, he performed the role of a Material Handler on a fixed term basis before returning to his permanent position of Production Operator on 26 November 2007.

 The complaint form submitted to the Workplace Relations Commission outlines that the Respondent has directly discriminated against, the Complainant citing age related grounds. The Respondent refutes this claim in its entirety.

The Complainant’s contract of employment signed by the Complainant on 30th May 2005 and the Complainant’s fixed term contract of employment which he signed on 21 August 2006 has the following clause at its signing page: This clause, which was signed by the Complainant, expressly provides that I accept and agree to be bound by the terms and conditions set out in the letter of offer and those outlined in the collective agreement made on my behalf between the Company and the Trade Union. Page 11 of the Collective Agreement for KOSTAL Mallow  provides as follows: As part of his contractual documentation, the Complainant also signed to confirm he had received a copy of the collective agreement. This acceptance page, signed by the Complainant, expressly provided that I acknowledge receipt of a copy of the Agreement made between ...the Company and ....the Union and I fully understand, accept and agreed to be bound by the terms and conditions set out in such Agreement and those contained in the agreements made on my behalf between the Company and the Trade Union.

Page 1 of his contract of employment also clearly provided for membership of the pension scheme as a term and condition of employment. The Complainant was a member of the pension scheme and would have received pension statements each year. The Company operated and continues to operate a consistent policy of members retiring at the age of 65 years and the Complainant would have been invited to attend any in house retirement presentation over the years for any colleagues retiring at the age of 65. The Complainant was offered a pre-retirement meeting with the Pension Providers five years in advance of retirement in line with standard arrangements and the Company’s retirement policy. The Complainant had the opportunity to reduce his working hours as per the Company’s normal pre-retirement procedures to allow employees to adjust to transition which he did not take up. The Respondent also has a Retirement Procedure in place. This procedure clearly provides that the automatic age of retirement in KOSTAL Ireland GMBH is 65 years.

The Respondent further submitted that, by custom and practice, the retirement age of 65 has clearly been established and maintained. Since the Respondent’s Mallow plant has been in operation, at least 16 employees have actually retired, between 2019 and 2025 year to date, with 5 more employees due to retire in Mallow this year. None of those employees who have retired have been over the age of 65 and the Respondent’s practice of requiring employees to retire on reaching the age of 65 is consistently and fairly applied without exception.

The Complainant has not nominated any comparator who he believes was permitted to work past normal retirement age.

History of Complaint; On the 26th January 2024, Mr Hosey, sent an email to Mr Liam Linehan, Head of Human Resources asking what the Company's policy was in relation to new retirement laws, as he would like to continue working in KOSTAL until he was 66.. Ms Noreen Keating, HR Business Partner replied via email on the 2nd February 2024 that as per his terms and conditions of employment the retirement age as per his contract of employment was 65 years.

On the 21st February 2024, Mr Hosey replied to Ms Keating’s email confirming that he wished to appeal the Company’s decision on his retirement. Ms Keating confirmed to Mr Hosey via email on the 26th February 2024 that he would need to raise a grievance to his immediate Supervisor and who would upon receipt of his grievance organise a meeting with him.

Mr. Paudie Keane, Shift Supervisor met with Mr Hosey on the 29th February 2024, outlined to him the retirement age as per the collective agreement and issued him the KOSTAL retirement policy. He further explained that the pension provider are also paying out at 65 years of age. This was an informal meeting. Mr Hosey confirmed that he would be taking up the matter with his union representative.

On the 11th April, Mr Hosey sent an email to Mr Keane stating that he wished to proceed with his grievance regarding his request to work in KOSTAL until he was 66. Mr Hosey retired on 29th May 2024.

On the 3rd July, Mr Keane received an email with an correspondence from Mr Diarmuid Long, SIPTU Advocate referencing a previous email sent on the 24th May regarding Mr Hosey’s retirement from KOSTAL. On the 9th July, Mr Diarmuid Long, SIPTU Advocate forwarded this correspondence to Ms Keating HR Business Partner via email confirming in  his email that he was instructed by SIPTU’s division that this correspondence may be more appropriately addressed to Ms Keating. Attached to that email was correspondence dated the 4th July, SIPTU which stated that Mr Hosey should be given the opportunity to continue to work longer under SI 600, the statutory instrument under the Code of Practice on Longer Working of 2017. The Company was obliged to provide an objective justification for any refusal to all Mr Hosey work beyond the age of 65, which was not provided in this case.

Ms Keating replied to Mr Long, SIPTU on the 19th July 2024 confirming that the Company / Collective Union agreement and the retirement policy specifies the retirement age of 65. Mr Hosey as part of his contract of employment, agreed to the terms of the Company / Collective Union agreement. Ms Keating also referred to the “Industrial Relations Act 1990 (Code of Practice on Longer Working)” which states that there is no statutory retirement age in the private sector. Retirement ages as set out in the Code, in relation to employees in the private sector these are generally set out by means of: (a) an express term in the employee’s contract of employment; (b) an implied term in the employee’s contract of employment; (c) relevant policies, for example a staff handbook; and (d) custom and practice generally arising from the pension date set out in the relevant occupational pension scheme.

The Company’s decision on retirement is made having due regard to how employee employment numbers are planned to respond to current and future business needs, the terms within the Company / Collective Union Agreement as well as the provisions of the Company’s pension scheme and KOSTAL’s Retirement Procedure. Since Mr. Hosey’s retirement in May 2024 a Company announcement in October 2024, in the context of continuing business volatility, included a decision to seek voluntary redundancies and also initiate a review of the viability of KOSTAL’s Abbeyfeale business. 85 voluntary redundancies have been completed year to date and it is understood that the ongoing review of Abbeyfeale’s viability will take months, as communicated to all KOSTAL Ireland employees in March 2025.

Objective Reason; A summary of the objective reasons justifying the Respondent’s mandatory retirement age are as follows: • Maintaining the dignity of the individual (avoiding capability issues) • Succession planning and intergenerational fairness (retention & promotion of younger personnel through the business). • Creating a balanced age structure in the workforce. These objective reasons are clearly set out in the Employer’s retirement policy since 2017 and have not been objected to by the Trade Union despite regular collective bargaining engagements since the introduction of the policy. At no stage has the Trade Union sought and agreed an extension of working life arrangement as part of its collective agreement with KOSTAL Ireland, the Respondent. Maintaining the dignity of the individual (avoiding capability issues)

The Respondent contends that its mandatory retirement age of 65 serves as a measure to protect the dignity of older workers within its employment and to ensure a smooth transition to retirement. In the absence of a fixed retirement age, it is more likely that the termination of an older worker’s employment might be on grounds of capability or capacity. Addressing matters of capability or capacity are challenging at the best of times for both management and staff in any employment, but these issues are likely to be particularly difficult for a worker at the end of his/her career, usually having given many years of very good service to an employer. This is particularly the case in the Respondent’s business, where there are greater health and safety concerns for consumers, colleagues, people living in the locality and potential end users than might exist in other employments.

By enforcing its mandatory retirement age, the Respondent applies a transparent and consistent approach to retirement which is understood by all staff, and which avoids the necessity to approach older colleagues and address performance issues or capability issues which are more probable to arise as the age of the worker increases.

Succession Planning and intergenerational fairness. The Respondent is a large employer in Mallow, Co. Cork and plays an important role as an employer of 306 people in the local economy. It is vital that the Respondent can retain a 7 viable and thriving plant which is capable of winning business on an international scale in order to maintain the success of the company and continue to create and maintain secure well paid employment opportunities for future generations of employment. Such opportunities can only be effectively managed where there is certainty in respect of succession planning. A departure from the current collectively agreed retirement age of 65 years will by its nature create uncertainty both in relation to future vacancies and skills planning.

Staff turnover / fluctuation for both Abbeyfeale and Mallow since 2023 has been 0.4% per annum. During the same period, both Revenue and number of units produced declined significantly, consistent with challenges faced by the German automotive industry as follows: Actual 2020 Actual 2021 Actual 2022 Actual 2023 Actual 2024 KOSTAL Ireland’s Profit and Loss (Million €) Minus €11 Mio Minus €11 Mio Minus €5 Mio Plus €15 Mio Plus €9 Mio

Whilst the Respondent has experienced loss-making years in 2020, 2021 and 2022 profitability was restored since 2023. Currently the management team is focused on preserving as many jobs as possible in the Abbeyfeale site despite production volumes dropping significantly since 2020. Both sites have the same agreed retirement age and it is inconceivable that the company could reach agreement with its trade union to implement longer working on one site and not on the other site. Based on the history of industrial relations within the company and the fact that Abbeyfeale employs more SIPTU members than Mallow, such an collective agreement would never be achievable. Furthermore, if employees are entitled to work beyond the age of 65 years, it will also create additional cost pressures on the business around the cost of provision of other ancillary benefits such as potential redundancy costs and Death in Service payments. As any large employer is aware, certainty of cost provision is a legitimate objective of any employer and the extension of working life beyond the mandatory retirement age will increase the cost of redundancy provision and in the absence of an upper age limit, will create uncertainty in cost planning.

For this reason, it is the Respondent’s position that its retirement age of 65 is a reasonable measure which can be used to ensure that there is effective succession and cost planning, allowing for the transfer of work and the provision of benefits across different generations of employees. The Respondent further submits that to view the intergenerational objective ground solely as based on the creation of work or employment opportunities for younger generations of workers based on the retirement of an individual employee is to overly limit this ground. Included in succession planning are requirements around planning for skills replacement and the important need to be able to predict the costs of future benefit provision. As found by the Supreme Court in Mallon v Minister for Justice, 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. The Respondent  submitted that the intergenerational fairness ground must be reasonably viewed in its totality across the employment in both manufacturing sites and not in relation to its application in specific roles. In taking the intergenerational issue into account regard must be had not just to the availability of vacant roles but also to related issues arising from the provision of employment and its effect on intergenerational fairness such as: • The provision of secure permanent employment which will enable younger generations of employees to acquire a mortgage and set up a home (rather than short term temporary or fixed term employment which will be an inevitable consequence of older permanent employees working longer without a fixed retirement date as permanent headcount vacancies will not be created); • The minimisation of the risk of compulsory redundancies which will increase in likelihood if the Respondent is required to employ employees beyond the collectively agreed retirement age of 65 years. Compulsory redundancies will have a disproportionate effect on younger generations of workers who will not have the same accrued service levels as employees who have already reached the collectively agreed retirement date and who will not only be at lesser risk of compulsory redundancy but will also be more financially incentivised to avail of voluntary redundancies due to their length of service. The extension of working  life beyond the agreed retirement date will also undermine the existing agreed redundancy cap of earnings to normal retirement age which is currently 65.

 The above is consistent with the reasoning of Lady Hale in Seldon v Clarkson Wright & Jakes [2009] I.R.L.R. 26.  In that case, Lady Hale stated that intergenerational fairness applies to both younger and older workers, as follows: “[Intergenerational fairness] can mean a variety of things, depending upon the particular circumstances of the employment concerned: for example, it can mean facilitating access to employment by young people; it can mean enabling older people to remain in the workforce; it can mean sharing limited opportunities to work in a particular profession fairly between the generations; it can mean promoting diversity and the interchange of ideas between younger and older workers”. Achieving intergenerational fairness in the provision of secure well-paid employment and fair benefits for younger generations of workers is both a legitimate aim of any employer and the means used to achieve those aims (through the imposition of a mandatory retirement age for employees who have the benefit of secure employment throughout their career) are both appropriate and necessary to achieve that aim.

Balanced Age Structure The need to maintain a balanced age structure across the workforce and employ younger generations of workers with the ability to adapt to the changing automotive industry with its greater focus on electric and hybrid vehicles means that it is both a legitimate aim of the company to strive for greater balance in age structure and the means to achieve this are both appropriate and necessary to achieving this legitimate aim.

Section 34 (4) of the Employment Equality Acts 1998-2015 state; “…. 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- (a) it is objectively and reasonable justified by a legitimate aim, and (b) the means of achieving that aim are appropriate and necessary.”

The Respondent wishes to cite the following cases: Felix Palacios De La Villa v Cortefiel Servicios SA441/05  where the European Court of Justice held that a mandatory retirement age, which was used to absorb high unemployment and to promote better distribution of work among generations was an objectively justified aim achieved through proportionate means. The question posed by the Spanish referring Court to the European Court of Justice was “whether the prohibition of any discrimination based on age in employment and occupation must be interpreted as meaning that it precludes national legislation such as that in the main proceedings, pursuant to which compulsory retirement clauses contained in collective agreements are regarded as lawful, where such clauses provide as sole requirements that workers must have reached retirement age, set at 65 years by the national legislation, and must fulfil the other social security conditions for entitlement to draw a contributory retirement pension.” The court concluded in its statement that the answer to this question; “must be that the prohibition on any discrimination on grounds of age, as implemented by Directive 2000/78 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, pursuant to which compulsory retirement clauses contained in collective agreements are lawful where such clauses provide as sole requirements that workers must have reached retirement age, set at 65 by national law, and must have fulfilled the conditions set out in the social security legislation for entitlement to a retirement pension under their contribution regime, where — the measure, although based on age, is objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market, and — it is not apparent that the means put in place to achieve that aim of public interest are inappropriate and unnecessary for the purpose. “

The Adjudicating Officer is referred to the case of Irish Ferries v Martin McDermott EDA 1631. where a claim of discrimination on the age ground was not upheld by the Labour Court because the retirement age was collectively agreed with the union, SIPTU, and the employee was aware of the retirement age, having been advised of it through the company pension policy. It was cited in this case that: ” the court sees no merit in the complainant's argument that he had a legitimate expectation of working beyond age 65. The court finds that the complainant was at all times aware that he was a member of a pension scheme that required that he retire at age 65”

In Paul Doyle v ESB International DEC-E2012-086 the Equality Officer upheld the objective justification for the aim of ensuring retention, motivation and dynamism among current employees and the means of achieving the aim through the fixing of a mandatory retirement age was appropriate and necessary and stated; “I am satisfied that the Respondent wishes to establish an age structure among its younger and older employees in order to encourage the recruitment and promotion of young people and to facilitate good personnel management. I am therefore satisfied that the Respondent has established a legitimate employment policy with a legitimate aim for the reason why, at the latest, employees with the Respondent must retire at 65 years of age.”

The recommendations as set out In the Workplace Relations Commission Code of Practice on Longer Working SI600/2017 (WRC Code of Practice) with regard to ensuring that an employee approaching the mandatory retirement age is aware and allowed reasonable time for planning, arranging advice, and succession planning has been followed by the Respondent.

The Respondent is not able to facilitate the request for longer working as it seeks to ensure intergeneration fairness with age diversity in its workplace, the nature of the work within the category of employee and the requirement of the business did not provide the opportunity to extend the Complainant’s employment beyond the mandatory retirement age. In circumstances where the Employee was implementing significant redundancies during 2025 and had a hiring freeze for any new permanent roles, it would be inconsistent to allow employees to continue to work beyond their agreed retirement date.

 The Respondent relies on the case of Fuchs and Kohler v Landhessen in C‑159/10 & C‑160/1 where the Courts of Justice of the European Union “accepted that a measure that allows for the compulsory retirement of workers when they reach the age of 65 can meet the aim of encouraging recruitment and be regarded as not unduly prejudicing the legitimate claims of the workers concerned, if those workers are entitled to a pension the level of which cannot be regarded as unreasonable”. The Respondent further relies on the case of Mallon v Minister for Justice and others where the Supreme Court found at paragraph 76: 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, 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.

The Respondent further relies upon the protection afforded to it under section 34(4) of the Employment Equality Act 1998 - 2015 to fix a mandatory retirement age that is objectively justified as set out above and the means of achieving this aim of age diversity and intergenerational fairness is appropriate and necessary which the Respondent asserts it has met these requirements in its objective justifications as set out above and that the means of achieving these aims are proportionate in the circumstances.

It was submitted that the Respondent did not discriminate against the Complainant as alleged or at all in the claim form of the Complainant and the Respondent relies on section 34(4) of the Employment Equality Acts, 1998-2015 as set out above and it is requested by the Respondent that the Adjudication Officer so finds.

a)    THE LAW

The Employment Equality Act prohibit discrimination on the ground of age.

Section 6(1) of the Act provides as follows :

6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(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”),

The alleged discrimination in this case is that one employee is not allowed work because of his age and another is allowed work because of their age.

In Ireland there is no compulsory retirement age in the private sector, and an employee has a legal right to continue working regardless of their age. However, section 34(4) of the Acts permits an employer to fix different retirement ages provided they can show that it is objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

 Section 34 (4) states: “without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for retirement (whether voluntary 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.”

The test for objective justification is as set out in Donnellan v The Minister for Justice & ors [2008] IEHC 467. In that case McKechnie J held:

“National measures relating to compulsory retirement ages, are not excluded from consideration under [the Directive]. Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e., they should be proportionate”.

McKechnie J also held in this case that the imposition of retirement age should be individually assessed i.e., on a case-by-case basis.

Further McKechnie J held that where multiple reasons are given for a compulsory retirement age, it is enough if one or more amount to a legitimate aim: “where justification is sought, and multiple reasons are given, it will be enough that one or more of the justifications advanced, amount to a legitimate aim”.

The Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (S.I. 600/2017) sets out best industrial relations practice in managing engagement between employers and employees in the run up to a mandatory retirement age. It also sets out a number of potential legitimate aims for setting a mandatory retirement age in the first place. The Code of Practice identifies the following examples of what constitutes legitimate aims by an employer: 

·       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 work force;

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

·       Succession planning.

 These are policy aims that have been endorsed by the Courts as legitimate aims in a series of cases.  However, in Donnellan v The Minister for Justice & ors  McKechnie J put an emphasis on individual assessment when considering proportionality. McKechnie J said at para. 104: “The fact that individual assessment is possible is an important consideration. Where there are a large number of people involved and it would be impractical to test every person then it may be proportional to use some form of age-proxy. Conversely, where there are few people to assess, and such could be done relatively easily it would not be proportionate to use blanket proxies so as to determine personal characteristics.”

In Köhler v Land Hessen, (Case–159/10 and Case C–160/10) the ECJ held that cost considerations cannot in themselves constitute a legitimate aim within the meaning of Art 6(1) of the Framework Directive.

b)    BURDEN OF PROOF

Section 85A(1) of the Acts provides:

“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”. 

In McCarthy v Cork City Council EDA082 the Labour Court pointed out that at the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

In Melbury Developments v Arturs Valpeters EDA0917, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a Complainant " must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”.

It is not disputed between the parties that the Complainant retired at the Respondent’s mandatory retirement age on his 65th birthday. He had sought an extension to age 66. This had been denied. The Complainant’s employment ended because of his age.

I accept from the facts of the case that the Complainant has established primary facts of sufficient significance to raise an inference of discrimination. The burden of proof then shifts to the Respondent to rebut the presumption of discrimination. The Respondent must establish that a contractual retirement age of 65 formed part of the Complainant’s terms and conditions of employment; that the mandatory retirement age serves a legitimate aim or purpose; and the means of achieving that aim or purpose was proportionate in the individuals circumstances.

c)     WITNESS EVIDENCE

The Complainant Representative set out with the Complainant his case in his contribution to the Hearing and stated he felt the decision to not allow the Complainant work on was unfair, that he had an excellent record of productivity for 19 years, that the contractual term was ambiguous, that the contract did not specify what age you retire, that in 2005 when the Complainant signed the contract he cant recall the company handbook and that he had requested to work for one more year in January 2024. He advised the pensions scheme allows you to work beyond 65 in exceptional circumstances and the company did nothing to consider this. He believed there was no test or reasoning applied to the decision not to allow the Complainant continue work and he got no formal reply to his grievance only general terms. He felt there was a disregard for the current legislative transition underway.

The Complainant advised that the last 4 months of work were the least enjoyable and that his colleagues had hoped he would stay on, that he was on social welfare since leaving, that he had trained a “young fella” into his job, that he was in good health, that he was aware the Respondent was an equal opportunity employer, that he had worked since he was 14 and that he only wanted to work for one more year.

The Complainant was cross examined on his evidence by the IBEC Representative, Ms. Sophie Crosby and agreed he had recommended the company to others, that his daughter was employed there, agreed he had got the benefit of terms agreed between SIPTU and the Respondent over time, was asked did he raise any exceptional circumstances to justify staying beyond 65 and he advised he was told to raise a grievance by HR. He advised he was not asking for a lot and was a good Operator with no issues. The Complainant was asked to agree that while discussions were ongoing at a national level at the time about a change none was agreed and the Complainant agreed with this. The Complainant stated people were now hired on 4 year temporary contracts and while lots of people got promoted before Covid none have been promoted since Covid. The Complainant agreed it was important young people got a chance to grow their skills and stated Kostal has all ages employed. The Complainant agreed it was important young people got permanent jobs. The Complainant was asked to agree that if young people were less likely to be promoted that they would be more likely to leave and he replied if they were happy they were more likely to stay. The Complainant was asked if the company did not know when someone was going to retire would that not be a difficulty and the Complainant stated that in most cases the 65 year old is better experienced that a 45 year old.

On redirect the Complainant confirmed to his Representative that he only wanted to work till 66, that he loved working, that he wanted to stay in the workplace, that he had requested a one year extension specifically, that he had no problem if it was a fixed term contract and that the pension policy does not define what the exceptional circumstances are to stay beyond 65. He stated older people have the entitlement to work too.

Ms. Noreen Keating, HR Business Partner, gave evidence she was employed for 30 years with the Respondent, that she handled many retirements and that there had been 17 already in 2015,and  that all retired at 65, that they have the same retirement policy across both sites, that the Union have never sought an extension of the retirement age beyond 65, that the Complainant was the first to request to work beyond 65, that staff had transferred from Abbeyfeale to Mallow due to restructuring, that no permanent new staff were hired in last year, that about 22 temporary staff were hired in April 2025, that none made permanent, that they have an internal promotion policy and do promote  a lot, that there is a ban on indirect recruitment, she advised the following promotions

2022   36

2023 39

2024 20

2025 there are a no of open positions.

She advised that due to a recruitment freeze they had to upskill and promote internally.

Ms. Keating was cross examined by Mr. Long of SIPTU and agreed there was an equal opportunity clause in the Company/Union agreement. She confirmed the agreement had not changed since 2001. She advised from time to time some changes were discussed with the Union.  Ms. Keating confirmed she was aware of the discussions on the new retirement Bill but no drastic changes were involved and that she was aware that the state pension age had changed. Ms. Keating outlined that this was the first request to work beyond 65 and that she had used the collective agreement as the ground in her justification for not giving the Complainant a fixed term contract, that she had never met the Complainant directly on the issue and communicated by email with him. She explained the process of retiring at 65 had been accepted up to now by all.

On redirect by Ms. Crosby for the Respondent, Ms. Keating confirmed the Trade Union had never requested a change to the pension age since the introduction of legislative changes and that no comparator had been quoted to justify the complaint.

Ms. Margaret Kelly, HR Business Partner for Abbeyfeale, gave evidence that there were two separate collective agreements for the two plants but they had the same pension plans. She outlined there were some difference in overtime and sick pay. She advised that the retirement policy was communicated to all staff in 2017 and that the Union had never requested a change to the retirement age. She confirmed that since 2015 there had been 49 retirements in Abbeyfeale and none beyond 65. She advised of a decline in orders and there was redundancies in the plant at the moment.  She outlined the large number of staff reductions/early retirement over the last few years and that the Union would not agree to different retirement ages in the two sites. She cited intergenerational fairness as a key policy consideration along with other considerations and that the job was mainly standing and was difficult to find seating roles for people who cannot stand for the full shift. She advised there was a lot of lifting, that most people were in their 50’s, very few were in their 20’s, that there had been a lot of internal promotion and the company try to recruit internally for promotions. She advised the last permanent employee was hired there in 2022 and 7 fixed term employees were hired in 2024.

Ms. Kelly was cross examined by Mr. Diarmuid Long of SIPTU and agreed she had no involvement in the Complainants retirement and was not involved in his grievance process and that she would have been asked about general retirement policy but not the specific request of the Complainant. She was questioned about the retirement age in the Abbeyfeale company Union agreement and stated it was silent but applied the same as Mallow. She advised the company had taken on 20 new operatives in the last few weeks. She confirmed there was no redundancies in Mallow. She confirmed that the last major investment was in 2016 and they never had the issue about retirement age in the Abbeyfeale plant. Ms. Kelly advised there may be difficulty with roles if the age of retirement is extended and there would be an increased cost of Life cover and redundancy cost if necessary.

Ms. Kelly confirmed on redirect that SIPTU had not sought a change to the retirement policy at the Abbeyfeale plant and that it would be difficult to find stationary roles if required.

Mr. Michael Quinn, Manufacturing and Logistics Manager, gave evidence he was with the company 28 years and is responsible for operations on both sites. He advised he had 2 production Managers reporting to him. He advised the plants handle different products and between 2014 and 2020 there were changes in the VW system and at one stage they lost 30% of their business in one go. He advised output was 3 times higher than 15 years ago, that products are done in line from start to finish, that it’s a team environment and everyone needs to be on the same page. He advised historically the retirement age of 65 was never questioned. He said he found that as people got older there were more medical/illness issues and more absenteeism. He stated being fit was key, that you had to keep up with the process and targets had to be achieved. He considered that the Irish plants were at a disadvantage as they were considered to have more indirects than other plants. He advised he liked internal promotions as they know the people, they were committed to the company and there was a high cost to bringing someone in from the outside. He advised it was a tough physical job and you would go home tired. He said young people were required to work with the technology, were more willing to take a chance, were more used to working with technology in their day to day lives and you needed to hire young people to avoid stagnation.  He does not see the company hiring lots of people, that by fixing a retirement age people have something to look forward too with certainty, that he operates on a 20 week order visibility and needs to know who is staying or going. He advised he needed to plan for succession and that people should not be under societal pressure to keep working. Mr. Long asked Mr. Quinn to agree there was a high training cost if you hire from outside and that it would have been more cost effective to give the Complainant a contract for one year. Mr. Quinn stated it would not be practical to change general policy based on one person. He stated the risk of absence increases and the person may not be as open to change as a young person. Mr. Quinn was asked is it not more cost effective to keep some one on than hire. Mr. Quinn stated that the ethos of the company is long term employment but young people are more open to apps and messaging interfaces from machines and can learn them better and that some older people need more support with digital systems and take more time off for training and that younger people come in with those skills already. He advised the best workforce is a balanced one.

In closing the Respondent Representative relied on the retirement clause in the collective agreement, that the Complainant was bound by the clause, that the pension age was 65 as set out in the pension booklet, that the Union had not made a claim to change the pension age, that there were no exceptional circumstances to consider, that the Complainant did not site a comparator, that the Respondent had a published and well known retirement policy, that it had a number of objective justifications for having a retirement age of 65, that it had and needed a common policy across both sites and it needed a balanced age structure in the plant.

d)    THE BACKGROUND FACTS

The Complainant's contract of employment is silent on retirement age.

The Respondent had in place a provision for a normal retirement age of sixty-five in its collective agreement in the Mallow Plant and that acceptance of the terms of the agreement between the Respondent and SIPTU were part of the Complainants contract of employment. The company/ union agreement sets the retirement age automatically at 65.  The Company/Union Agreement refers to “equal opportunities” and notes that the company will not discriminate based on age.

This is the first occasion on which the Respondent had to defend its objective justifications contained in its Retirement policy and this was prompted by the Complainant’s request to continue working beyond the normal retirement age. Three objective justifications are set out in a very basic and limited way in the Policy.

In dealing with the Complainants request pre-retirement the Respondent primarily relied on the collective agreement and custom and practice and gave very little, if any, considered assessment of the Complainants capability to work for a further year. This is very significant in the final assessment of this complaint.

No inference detrimental to the Complainant’s case can be drawn from the evidence that the Respondent engages for collective bargaining purposes and have agreed a normal retirement age with the Trade Union involved and neither that the Trade Union has sought not to amend that agreement. No negotiations or request to amend this clause was brought to the attention of the Adjudicator. The Complainant, however, has brought an individual complaint under the Act and at no point in these proceedings has he sought to upset any collective agreement in place within the Respondent.

It was not contested that the Complainant performed all aspects of his job satisfactorily, and without giving rise to any health and safety concerns, up until the date of his retirement. No circumstances particular to the Complainants role were brought to the Adjudicator’s attention that would preclude the Complainant from doing the job for a further year.

From the date the Complainant set out his desire to stay for a further year of employment beyond 65 (January 26th 2024) to the date he retired  (May 29 2024) the primary justification set out by the Respondent in the grievance process to justify not  allowing the Complainant work beyond 65 was that the retirement age was part of a collective agreement that applied to the Complainant and that his pension (along with other eligible employees) commenced at 65. It also made reference later on in the appeal process to its Retirement Policy and the basic objective justifications set out in that policy.

The Respondent has a “Retirement Procedure “Policy which is reviewed annually. It sets out the following as its three objective grounds for justifying the mandatory retirement age of 65;

1.    Maintaining the dignity of the individual (avoiding capability issues)

2.    Succession planning and intergenerational fairness (retention & promotion of younger personnel through the business).

3.    Creating a balanced age structure in the workforce.

The Respondent has, at the Hearing, set out in detail a greater number of objective justifications (outlined below) for maintaining its stance that it is not acting in a discriminatory manner by having a fixed retirement age of 65. 

In the first response (denial) of his request to work beyond 65 no mention of any objective grounds were made in denying the Complainants request. The response just focused on the term in the Collective Agreement.  In the second denial of his request very little mention is made of the stated objective grounds but relied mainly on the Collective Agreement. It is not fully clear to the Adjudicator how much emphasis or discussion took place between the parties regarding these stated grounds during the months prior to the Complainant retiring. It appears that it was very little.

The Respondent conducted no individual assessment (in any shape or form) of the Complainants capability to stay working for a further year. However, individual assessment  to continue working is not considered mandatory where there are large volumes of retirees  and a more common justification for having a fixed retirement age is acceptable in these certain (undefined) circumstances.. However, individual assessment is stated as appropriate in other circumstances. See Donnellan v The Minister for Justice & ors  McKechnie above. This complex legal position is central to this case.

The Complainant had not been requested to undergo medical or physical assessment before any decision was made in response to his request to work beyond the normal retirement age, nor does it appear that he was asked would he be amenable to such assessments being conducted should his request have been granted or whether he would regard that as an affront to his dignity.

No examination of offering the Complainant a fixed term contract for a year took place. It was not disputed that there was a requirement for the work conducted by the Complainant.

No evidence was advanced at the hearing to the effect that the Complainant could not have deferred drawing down his occupational pension until the conclusion of any extended period of employment with the Respondent or that if he had to draw down his pension at age 65 while continuing to work that this would be detrimental to him.

f) EXAMINATION OF OBJECTIVE JUSTIFICATIONS

The basic facts of this case are not in dispute. The legal point to be decided is whether the Respondent discriminated against the complainant by imposing on him a mandatory retirement of 65 years of age. The Respondent is relying on Section 34(4) of the Act which allows for the fixing of a retirement age under certain circumstances. These circumstances (objective reasons) are examined below.

Existence of a contractual retirement age

The Complainant’s submission that his contract did not stipulate a retirement age was not disputed by the Respondent however it did contain a clause that the employment relationship would be bound by the collective agreement which stipulated a mandatory retirement age of 65.

The Complainant confirmed at the adjudication hearing that he was aware of the pension scheme. The Complainant confirmed that he was aware of the normal retirement age of 65.

In Connaught Airport Development Limited T/a Ireland West Airport Knock v John Glavey EDA1710, the Labour Court stated that section 34(4) of the Acts, prima facie, allows for the fixing of “. . . a retirement age without contravening the prohibition of discrimination on grounds of age. The jurisprudence of the CJEU on the circumstances in which compulsory retirement is saved by Article 6 of the Directive is relevant only if the Court finds that a retirement age was in fact fixed by the Respondent and that the retirement age applied to the Complainant”. The Court held further that: “It seems to the Court that this custom and practice test can appropriately be applied in considering if the policy of an employer took effect as a contractual term or a condition of employment. The terms of a pension scheme may also be relied upon as either implying a term as to retirement or by incorporating the terms of the scheme into the contract. A crucial consideration in addressing the question of incorporation or implication is whether the employee knew, or ought to have known, of the term contended for.”

Therefore, the agreed mandatory retirement age of 65 was an implied term of the Complainant’s contract of employment, through the collective agreement.  In all the circumstances I am satisfied that the Respondent had a contractual retirement age of 65 in respect of the Complainant and that the Complainant knew or ought to have known of its existence.

The Plant have been in operation since 2001 and the established custom and practice is that staff retire at 65. The Respondent has in place a Retirement Policy that sets out 65 as the mandatory retirement age based on set out objective reasons. This custom and practice has never been challenged until now and therefore it is reasonable to assume that staff having to retire at 65 was widely accepted as custom and practice and was never challenged in a structured Trade Union representation environment.  

Does the retirement age of 65 serve a legitimate aim and was the means of achieving that aim proportionate in the circumstances?

A mandatory retirement age is discriminatory on age grounds unless it is objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.

As stated by the Labour Court in Bord na Mona Plc v Kenny, EDA2232, “objective justification for interfering with an individual’s employment rights requires a proportionality assessment to balance conflicting interests that must be decided on the facts of each case”.

The Respondent set out that the operation of a mandatory retirement age of 65 was objectively justified by reference to a number of lawful aims. These were outlined in detail and contained herein in the Respondent’s submission and evidence to the Hearing and in the Company Retirement Policy published since 2019 and reviewed annually. In the normal course of events the aims set out by the Respondent would qualify as reasonable and proportionate to justify a mandatory retirement age. However, primarily because it never had to elaborate on these aims before due to no request to work beyond 65 being received, these aims have not been fully articulated or tested between the Company and the Trade Union and its staff prior to the Hearing of this complaint. As a result,  the Complainant was not aware of them, in any substantive way, prior to the Hearing into his complaint.

Succession Planning

The Respondent stated that knowing when staff will retire is a key element of succession planning and to schedule trainingof new staff. Allowing one Worker to work for a further year, is a decision that would not have a major effect on this issue.

Putting in place an age balance in the workforce

With regard to the workforce planning and age balance,in Transdev Light Rail Limited v Chrzanowski EDA1632 the Labour Court held:

“The Court accepts that it is not unreasonable for employers to have a legitimate interest in workforce planning. In Rosenbladt v Oellerking Gebäudereinigungsge GmbH (Case C-45/09) [2011] I.R.L.R. 51 the CJEU examined the justification of a retirement age contained in a collective agreement, it held:-"By guaranteeing workers a certain stability of employment and, in the long term, the promise of foreseeable retirement, while offering employers a certain flexibility in the management of their staff, the clause on automatic termination of employment contracts is thus the reflection of a balance between diverging but legitimate interests, against a complex background of employment relationships closely linked to political choices in the area of retirement and employment. ... It does not appear unreasonable for the social partners to take the view that a measure such [the provision containing the retirement age] may be appropriate for achieving the aims set out above".

I note that the Respondent is undergoing a serious business review and that compulsory redundancies are possible. The Respondent submitted that by recruiting  a younger workforce they are more open to technology and change and that not having vacancies for younger staff would impact on their staff capability to deal with modern technology.  I accept that the Respondent wished to progressively retire, recruit, and promote staff. I, therefore, accept the Respondent’s position that it had to plan staff succession to ensure that the staffing arrangements are adequate. I further accept the Respondent’s evidence that there were no exceptions to its retirement policy since its commencement date and that to change now in a “forced” fashion would cause some significant disruption to staff planning . I am satisfied that if a mandatory retirement age was not adhered to, this would compound the age imbalance in the plant.

The Respondent’s staffing requirements have changed and the Respondent need to adhere to its general retirement policy to create a balanced workforce which also ensure that the Respondent can effectively manage the departure of staff and recruitment of a new cohort with skills that meet the needs of the future.

Health & Safety Concerns

Regarding the physical requirements of the role and the health and safety aspect, I accept the Respondents submission that the role is physically demanding but there was no assessment that the Complainant was not capable or a higher risk by being a year older to complete the duties demanded by the role.

I note that the Respondent did not seek medical opinion of a specialist in occupational medicines/safety assessment to ascertain whether the imposition of a retirement age on the Complainant was justifiable as a genuine and determining occupational requirement.

However, the CJEU and the Labour Court have accepted that physical capacity deteriorates with age and that setting a retirement age is an objective and legitimate means of protecting the safety of staff, such as in the case of Irish Ferries v McDermott EDA1631 where Mr McDermott, a docker who had challenged the imposition of a retirement age of 65, argued, amongst other things that he was in good health and capable of discharging his duties. The Respondent in that matter “set out good grounds that objectively justify the selection of those ages for this category of staff. Those grounds include the arduous nature of the work which becomes increasingly difficult with age”.

In Bord na Mona Plc v Kenny EDA2232, it was stated that “It is an established fact that people’s ability to perform physically demanding work deteriorates with age, as a consequence of the natural effects of age on the human body.”

The Code of Practice on Longer Working includes the legitimate aim of “personal and professional dignity (avoiding capability issues with older employees)”. In the Mc Dermott case, holding in favour of the employer, the Labour Court focused on the objective justification, reasonableness, the need to preserve the dignity of the employee, and the fact that a pension scheme was in place to compensate the employee. It held:

“The Court finds that terms of the pension scheme were arrived at through collective agreement with the relevant trade unions. The Court further found that the retirement age has been universally applied to this category of staff whose work is acknowledged by both sides to be arduous and physically demanding.

The Court further finds that the Respondent has set out good grounds that objectively justify the selection of those ages for this category of staff … The setting of a maximum working age of 65 at this time ensures that staff are not exposed to the embarrassment of finding themselves incapable of discharging their duties and being retired in that context rather than with dignity and respect.” 

To encourage the Recruitment and Promotion of Young People.

The establishment of a legitimate aim is only one step of the process and therefore it remains for consideration whether the retirement age of 65 is appropriate and necessary in respect of the Complainant. As noted above, a measure may indeed pursue a legitimate aim but may not pass the test of proportionality in any individual case. As stated by McKechnie J in Donnellan: “the measure must go no further than is required to reach the legitimate aim and must do so in the least restrictive way possible” (at [98]). A useful summary of the EU caselaw in relation to age discrimination is the persuasive authority from the UK Supreme Court in Seldon v Clarkson, Wright & Jakes [2012] UKSC 6 in which Lady Hale notes:

“It is one thing to say that the aim is to achieve a balanced and diverse workforce. It is another thing to say that a mandatory retirement age of 65 is both appropriate and necessary to achieving this end . . . [t]he means have to be carefully scrutinised in the context of the particular business concerned in order to see whether they do meet the objective and there are not other, less discriminatory, measures which would do so” (per Lady Hale at [62]).

I will deal with the appropriateness of these objective justifications in my conclusions.

G) CODE OF PRACTICE

The Industrial Relations Act 1990 (Code of Practice on Longer Working ) (Declaration) Order 2017 (S.I. 600/2017) sets out best practise for managing the engagement between employers and employees in the run up to the retirement age within the employment concerned. The Code of Practice references notification procedures, the carrying out of objective assessments in the context of justifying the retirement and access to an appeals mechanism.

There was a number of meetings held which would give both the employee an opportunity to advance his case and allowing the employer to consider it. There was evidence the Respondents written retirement policy was provided to the Complainant in the run up to his retirement. There was evidence he was represented and had the opportunity of an appeal to the decision not to continue his employment beyond 65

 In light of the submissions and evidence presented, I find that the Respondent did comply (in part) with the principles suggested by the Code of Practice in respect of the Complainant’s request to work longer. .However, I find that no detailed assessment of the Complainants case took place to assess his individual capability to continue working for one more year and instead the Respondent primarily relied on custom and practice and the clause in the collective agreement. This does not comply with the general aim of the Code.

.  H) GENERAL OVERALL CONCLUSION

There was no dispute that that a retirement age was provided for in the collective agreement between the Respondent and the Trade Union and it was known to the Complainant.  This was an implied term of employment.

It was not disputed that that the Respondent has applied the policy consistently in the past, that it was custom and practice and no other employees have requested to work beyond that retirement age at the time of the Hearing.

The Respondent primarily relied during the request process on the fact that the normal retirement age had been collectively agreed with its trade unions, neither of which had ever indicated that it wished to increase the normal retirement age.

 The Adjudicator finds that prior to the Complainant making his application the Respondent had set out in a written retirement policy its objective justifications for a mandatory retirement age since 2019 and this policy was reviewed annually. The distribution of this policy was not explained and is not known. However, this policy made no reference to a procedure for assessing any request to continue working beyond 65.

 Following receipt of the Complainant’s application, the Complainant was initially advised that his application to work beyond 65 was refused due to the clause in the Collective agreement stating a mandatory retirement age of 65.

In his Appeal Hearing further grounds for refusing his request were provided to the Complainant , including the justifiable grounds contained in the retirement policy, but it appears these grounds were not known prior to the appeal by the Appeal Officer.

Taken collectively, the Respondents justifications set out above for a mandatory retirement age provide reasonable and objective justification for the Respondent’s imposition of a mandatory retirement age. 

My assessment of the above legal information is that a least one sound justification is required to support a mandatory general retirement age (which the Respondent has at least in this case) and an individual assessment is required for just one person seeking to work beyond the set retirement age even where there are stated general and sound justifications in place for having a mandatory retirement age. Should the individual assessment (possibly including a medical and physical assessment based on the requirements of the job and subject to insurance etc being sorted) not support the application then an Employer can do no more but apply the objective justifications. However, where it shows no risk in continuation of working then the person should be allowed continue working for a defined period (all things being equal), even where there is a sound general justification. I accept this assessment may appear to be at cross purposes but that is my interpretation of where the general and legal situation is at, at present.

 Based on the evidence presented to the hearing, I determine that the Respondent acted in compliance with Section 34(4) of the Act and that the generic retirement age it applied in this case was objectively and reasonably justified by legitimate aims but the means of achieving these aims were not appropriate.  Given this was the first and only applicant to seek to work longer hours  I find that the Respondent did not comply with the Act in assessing the Complainants request (and the aims of the Code of Practice on Longer Working) and should have conducted an individual assessment of the Complainant to work for a further year, either as a continued permanent employee or on a fixed term contract. It appears to the Adjudicator that the Respondent gave too much credence to the existence of the clause regarding a mandatory retirement age in the Collective Agreement and not enough careful assessment of the individual rights under anti discrimination legislation and his capabilities to work a further year.

Given the complexity and uniqueness of this case to the Respondent, who is a well regarded employer, I feel it appropriate to comment further on the situation to elaborate on my decision due to the complexity involved.. I have stated that the Respondent has set out at the Hearing what would normally be acceptable justifications for having a set retirement age but that, in this case, it failed to give adequate consideration or assessment to the individuals situation and request to work beyond 65 for a year. It is possible these justifications for a mandatory retirement age could pass any future scrutiny if elaborated on in more detail in its Retirement Policy and where there is a large block of retirees but this would be assisted if the Respondent amends its Retirement policy to include a fair assessment process for any future individual request to work beyond 65 for a year. Given this is the first ever request to work beyond 65 for a defined period in a company with over 700 staff and operating since 1981, I do not see the inclusion of this suggested change, for an individual application, to the Retirement Policy as a major burden on the Respondent given there were no other applicants for longer working to date. However, this is a matter for the Respondent to consider and these observations do not form part of my Decision.

My overall conclusion is that the Respondent has objective grounds for determining a set retirement age but that that their Retirement Policy is inappropriate and should give more weight and consideration to any request from any individual staff member to remain in employment for a further year, in some form of employment (permanent or fixed term) , and that a process and “tests” for assessing a request should be contained (well in advance of the retirement date) in their Retirement Policy and comply with the aims of the Code for Longer Working to ensue each request is fairly considered and they are not discriminating on the age ground.

The Adjudicator is satisfied that the Complainant was discriminated against on grounds of age in contravention of the Act and finds that his complaint is well founded. Taking the facts that the Respondent has set out legitimate objective grounds for a set retirement age but failed to assess the Complainants request adequately against those grounds, I determine that an award of compensation of €15,000 is appropriate in all the circumstances and based on precedent cases.( CA-000-65601-001)

I find that the Respondent did engage in a prohibited act and the complaint is well founded but make no award under this complaint as it is basically a duplicate complaint to above.  (CA-000-65601-002.)

Age Discrimination