EDA2644

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00052052 (CA-00063847-001)

BACKGROUND:

The Employee appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 7 January 2025. Labour Court hearings took place on 26 May 2026.

The following is the Determination of the Court

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DETERMINATION:

This is an appeal by the Respondent of Adjudication Officer’s Decision ADJ-00052052 CA-00063847-001. The Adjudication Officer held that the Complainant was discriminated against on the age ground and awarded compensation of €15,000. The complaint was lodged with the WRC on 31 May 2024. The cognisable period, as defined by the Act, is 1 December 2023 to 31 May 2024. The Adjudication Officer issued their decision on 10 December 2024, and an appeal was lodged with the Labour Court on 7 January 2025. The case was heard by the Labour Court in Waterford on 26 May 2026.

In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Mr Curran is referred to as the Complainant and Carlow County Council is referred to as the Respondent.

1. Summary of the Complainant’s Submission

The Union submitted that the Complainant served as a member of the Irish Fire and Rescue Service for almost forty years and contributed substantially to the protection of the community by participating in numerous lifesaving firefighting and rescue operations. Since 2019, after reaching the normal retirement age of 55, he had been granted a series of successive fixed-term contracts, having successfully passed annual occupational health assessments.

On 16 December 2023, the Complainant wrote seeking a further extension to his existing contract, noting that he would turn 60 on 13 January 2024. By email dated 20 December 2023, he was advised that, under Circular LG(P) 02/2020 dated 8 December 2020, no extension beyond his 60th birthday could be granted to a retained firefighter. The Union outlined the background to the retirement age of 55 which, following conciliation between the Unions and the Employers at national level, retained a minimum retirement age of 55 but allowed an optional extension to age 60, subject to compulsory medical assessment. This arrangement was accepted by the parties to the agreement.

In 2023, the Union sought to extend the retirement age for retained firefighters to 62. This resulted in the following agreement between the parties in August 2023:

“The Commission notes the intention of the union side to pursue a voluntary increase in the current retirement age. The Commission further notes that management will not object to the pursuit of same within the confines of current public sector policy on retirement in emergency services. Management will, where appropriate, advocate in support of this.”

It is the Union’s position that the extended age of 62 was available to retained firefighters from August 2023 when that discussion took place under the auspices of the WRC. On 5 March 2024, the Government announced approval of changes to the terms and conditions of employment for members of certain uniformed services; however, retained firefighters were not mentioned. They were included later following representations from the Union, and this is reflected in Circular LG(P) 04/2024, which issued in May 2024 and implemented the higher mandatory retirement age of 62 for retained firefighters with immediate effect from that date. The Union submitted that, because of the delay in implementation the higher maximum retirement age, the Complainant was forced to retire even though it was known that an extension was being sought at national level.

The Union submitted extracts from the following cases Vera Egenberger v Evangelishes Werk fur Diakonie und Entwicklung (C-4414/1c), Donnellan V minister for Justice and Law Reform and Others [2008] IEHC4c7. R (Age Concern England) v \Secretary of State ( C-388/07 and Fuch and Kohler v Land Hessen ( C-15s/10 and C10/10), Lord Chancellor v McCloud, Secretary of State for the Home Department v Sargeant [2018} EWCA Civ2844, Seldon v Clarson Wright &

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Jake [2012] I.C.R71c, Ann Roper v RTW ADJ- 00015084 and Valerie Cox v RTE ADJ-00006972, Seamus Mallon v The Minister for Justice, Ireland and the Attorney General [0224] IESC 20, Wolf v Stadt Frankfurt am Main( C-225/08, Mc Nally v Nenagh UDC EEc/SS Case C447/08 Prigge v Deutsche Lufthansa [2011] E. C. R. 1- 8003.

The Union also relied on extracts from the IHREC guidelines on Retirement and Fixed-Term Contracts of April 2018 and the Industrial Relations Act Code of Practice on Longer Working. The Union submitted that the Complainant had completed an occupational health assessment annually since age 55 and was simply seeking to continue on that basis. Non-retained firefighters, at the relevant time, were permitted to work beyond age 60, and discussions were ongoing in relation to extending the retirement age for retained firefighters to 62. It is the Union’s submission that the retirement age of 60 was neither necessary nor proportionate and that the measure went beyond what was required. It is therefore submitted that the retirement age of 60 was not objectively justified.

2. Summary of the Respondent’s Submission

The LGMA, on behalf of the Respondent, submitted that the substance of the complaint appears to be that the Complainant believes he was discriminated against by the failure to enact legislation extending the retirement age for retained firefighters prior to his retirement, having reached the existing maximum retirement age for retained firefighters. The Complainant commenced employment as a retained firefighter with the Council on 14 May 1986. At that time, the retirement age for retained firefighters working for the Respondent was 55. When the Complainant reached the age of 55, he was granted annual extensions, subject to medical assessment, up to age 60, which was the maximum retirement age for retained firefighters in line with national agreements at that point in time.

In 1985, a compulsory retirement age of 55 was introduced at national level as a result of lengthy negotiations between the LGMA, representing employers, and the trade unions representing retained firefighters. In 2002, the issue of retirement age for retained firefighters was the subject of a referral to the Labour Court. At that time, SIPTU had sought an increase from age 55 to age 60. In Labour Court Recommendation CC01/3661, the Court recommended “that the need to maintain a blanket retirement age of 55 from a health and safety perspective should be objectively assessed by the parties with the assistance of suitable experts”.

An expert group who issued their findings in 2003, was established on foot of that recommendation. It provided that retained firefighters would have the option of either retiring at age 55 or, subject to compulsory medical assessment, obtaining an annual extension up to a maximum age of 58. This was confirmed by Circular LG(P) 19/03 dated 24 November 2003. In early 2020, following extensive engagement at the WRC, it was agreed to amend the existing provisions so that retained firefighters could obtain annual extensions from age 58 to age 60. As part of that process, and on an interim basis pending consideration of the legislative amendments required to amend the Single Pension Scheme, Circular LG(P) 02/2020 issued. It provided that retained firefighters could continue working until reaching age 60, subject to compulsory assessment under the Occupational Health Scheme.

The outcome from the WRC conciliation in 2023 was different, in that it related only to the Union’s intention to pursue a voluntary increase and the Respondent’s commitment not to oppose it.  At that time, it was understood by both sides that any change to the maximum retirement age for retained firefighters would require a government decision. Once that decision was made, and in preparation for amended legislation, an interim circular issued in May 2024 applying the extension to age 62 from that point in time. The Complainant had retired by then. The relevant S.I. 420/2024 came into being on 19 August 2024.

It is accepted nationally, at EU level and internationally, that fire services, and therefore firefighters, require a high level of physical exertion. It is the Respondent’s submission that a difference in treatment which is based on the nature of the particular occupational activities, or the context in which they are carried out, will not constitute discrimination. The Respondent is satisfied that characteristics related to the age ground constitute a genuine and

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determining occupational requirement for the role of firefighter. The Respondent submitted that the establishment of a specific retirement age for retained firefighters is objectively justified by reference to a legitimate aim, and that the means used were appropriate and reasonable and not contrary to section 34(4), which allows for the fixing of a retirement age.

This position is supported by decisions in Donnellan v Minister for Justice, Equality and Law Reform [2008] IEHC and Saunders v CHC Ireland Limited DEC-E2011-142. The Respondent submitted that the setting of a maximum retirement age of 60 was legitimate, as it was to ensure the proper functioning of fire services operating in fields of work where physical and mental abilities are crucial to the role. It went on to submit that there are characteristics which constitute a genuine and determining occupational requirement as they relate to the role of firefighter. It is accepted as a matter of fact that physical capacities naturally diminish with age and, as an employer, the Council must consider age as an essential characteristic of the proper exercise of the physical capacities of a firefighter to undertake the role.

The Respondent opened the following cases to the Court: Wolf v Stadt Frankfurt am Main C-229/08, Palacios de la Villa v Cortefiel Servicios SA Case C-411/05, and Thomas Specht v Land Berlin C-501/12, in support of its contention that the retirement age in question was objectively justified by legitimate aims within the meaning of Article 6 of the Directive. It submitted that, as provided for under Article 2(5), there is a genuine and determining occupational requirement for retained firefighters to be young enough to carry out their role safely and that, therefore, the retirement age is permitted by reference to Article 4(1).

 The Respondent also referenced Seamus Mallon v the Minister for Justice Ireland and the Attorney General [2024] IESC 20 where at paras 76 to 77 it was held that a mandatory retirement age did not offend the prohibition on age discrimination and that the absence of individual assessment does not make the measure disproportionate.

3. 3. Relevant Law

Section 34 (4) of the Act provides

Section 27 of the Act provides in relevant part as follows: -

(2) For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out—

(a) the characteristic constitutes a genuine and determining occupational requirement, and

(b) the objective is legitimate and the requirement proportionate.

(3) It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the

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range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.

The issue for the Court to consider is whether the termination of the Complainant’s employment on the expiry of his fixed-term contract was objectively and reasonably justified by a legitimate aim and whether the means of achieving that aim were appropriate and necessary.

4. Facts not in Dispute

The following facts were not in dispute:

The Complainant’s contractual retirement age was 55.

Collective agreements had been reached which, at the time of his retirement, provided for a maximum mandatory retirement age of 60, subject to annual medical assessments from age 55.

The Union was seeking to have the maximum mandatory retirement age extended to 62.

The retirement age for this cohort of workers is covered by statutory instrument and required a government decision to change.

The Government decision to extend the maximum retirement age to 62 for this cohort of workers was made in May 2024, some months after the Complainant had retired, and did not have retrospective application. The relevant S.I. 420/2024 came into being in August 2024.

On each occasion that the Complainant sought and was granted an extension after his 55th birthday, he signed an undertaking accepting that the extension would be for a maximum period of 12 months, would be subject to an occupational test, and that no extension would be granted beyond his 60th birthday.

5. Discussion and Determination

A mandatory retirement age is discriminatory unless it falls within the exceptions provided for under section 34 (4) of the Act. This requires the Respondent to establish that the relevant mandatory retirement age was objectively and reasonably justified by a legitimate aim and that the means of achieving that aim were appropriate and necessary. The Act also provides that people working in emergency services are required to be fully competent and fully capable of carrying out the range of functions that they may be called on to perform.

The Court was provided with detailed written and oral submissions from the parties giving the background to the setting of the mandatory minimum and maximum retirement age as follows. The setting of a retirement age of 55, and a maximum age of 58, followed a report of an expert group in 2003 tasked with reviewing the retirement age for retained firefighters. One of the findings of that group was that “nothing in the evidence presented to the Expert Group suggested the age of 55 as a compulsory retirement age is discriminatory on grounds of age”. The maximum mandatory age limit was later extended to 60 with the minimum retirement age remaining at 55, as part of a collective agreement under the auspices of the WRC in 2020.

While the Union submitted that the mandatory retirement age was not a legitimate aim and was not objectively justified, it did not expand on this point. Instead, it relied on the fact that there had been engagement at national level around increasing the maximum retirement age to 62 prior to the Complainant reaching the age of 60, and it believed these discussions were sufficient to allow the Respondent to renew his fixed-term contract beyond the age of 60.

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The Respondent’s position is that it was bound to operate in accordance with the existing statutory provisions as set out in Circular LG(P) 02/2020 dated 8 December 2020, which set out a maximum retirement age of 60. The Respondent had no discretion to depart from that until and unless the Government decided otherwise. This did not happen until sometime after the Complainant had retired.

Accepting that as being the operational requirement at the relevant time, the Court then needed to consider whether the Respondent had established that the relevant mandatory retirement age was objectively and reasonably justified by a legitimate aim and that the means of achieving that aim were appropriate and necessary.

The Respondent submitted that the nature of the work and the conditions within which the work is carried out by retained firefighters dictate the need for a mandatory retirement age below the statutory retirement age. It pointed to the fact that the Complainant held another role with the Respondent and was not required to retire from that role at age 60, as the work he carried out in that role did not make such a requirement necessary.

 In respect of legitimate aim, the Respondent submitted that it is accepted at EU level and internationally that fire services, and therefore firefighters, require a high level of physical exertion, and that this is a factor influencing the maximum mandatory retirement age. The setting of a maximum mandatory retirement age is, it submitted, objectively justified by reference to the legitimate aim of ensuring the proper functioning of the fire service. The service has a duty to protect public safety, ensure its operational capacity, and maintain a workforce capable of, and available for, physically demanding work.

In Mallon v Minister for Justice and the Attorney General [2024] IESC 20 Collins J summarised what he considered to be the principal points emerging from the principal CJEU cases. At paragraph 62 (3) and (4) he noted

“A measure providing for mandatory retirement (whether a legislative measure or a provision of a collective agreement) may be justified even where it does not identify the aim being pursued; the ‘general context of the measure concerned’ may be relied on to identify the underlying aim of the measure for the purpose of judicial review of its legitimacy and whether the means put in place to achieve that aim were appropriate and necessary. (Palacios de la Villa, paras 54-57; Age Concern England, para45; Case C-341/08Petersen. Para40; Rosenbladt, para58; C-268-09 Georgiev, para 40)”

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

Applying these points to the Respondent’s stated legitimate aims of public safety, operational capacity, the proper functioning of the fire service, and maintaining a workforce capable of and available for physically demanding work, and accepting that the Respondent is best placed to assess what is necessary or appropriate for the effective operation of its fire service, the Court determines that the Respondent has established that the mandatory retirement age was objectively and reasonably justified by legitimate aims.

The Court then had to consider whether the means used were appropriate and necessary. The Respondent submitted that it engaged with the Workers’ Unions and an expert group to ensure that the age set as the maximum retirement age was appropriate and reasonable, and that this is reflected in the expert report and the ongoing discussions with the Trade Unions. This was not disputed by the representative for the Complainant. The Respondent confirmed that it had reviewed its files and that no retained firefighter in its employment had been retained beyond age 60.  In

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respect of any financial hardship that might arise, it was not disputed that the Complainant continued in his permanent position as a Grade VII officer with the Respondent.

 A key factor for the Court to take into consideration is the proportionality of the measure and the specific age chosen. In this case, the age was arrived at following a review by an expert group consisting of people working in the field and collective engagement between the Respondent and the Workers’ Trade Unions who were representative of workers in the field, both of which supported initially a maximum age of 58 and then a maximum age of 60. Taking all of this into account, the Court concluded that the means of achieving the legitimate aims were appropriate and necessary.

The Court is satisfied, for the reasons set out above, that the Respondent has established that the setting of the mandatory maximum age limit at the relevant time was objectively and reasonably justified by a legitimate aim and that the means of achieving that aim was appropriate and necessary.

On that basis, the Court determines that the appeal succeeds. The decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AM	______________________
10/08/2026	Chairman

NOTE

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

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