EDA2628

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00050808 (CA-00062440-001)

BACKGROUND:

The Employer appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2021 on 14 May 2025. The Labour Court hearing took place on 19 March 2026.

The following is the Determination of the Court:

DETERMINATION:

1. This is an appeal by Mayo County Fire Service against the Decision of an Adjudication Officer (ADJ-00050808, CA-00062440-001 - dated 3 April 2025) in relation to a complaint made by Tom Kettrick under the Employment Equality Acts, 1998 - 2021 (“The Act”).
2. The Adjudication Officer held that Tom Kettrick was discriminated against on the ground of age and made an award of €9,500 as compensation.
3. A Notice of Appeal was received by the Labour Court on 14 May 2025. The Court heard the appeal in Sligo on 19 March 2026. Written and verbal submissions were made by both parties. Neither party proffered witness testimony. Both parties confirmed that they were given an opportunity to be heard and make all relevant submissions. With the permission of the Court, both parties lodged supplementary legal submissions after the hearing date.
4. For ease of reference the parties in the determination are given the same designation as at first instance. Hence Tom Kettrick is referred to as “the Complainant” and Mayo County Fire Service is referred to as “the Respondent”.

Background

5. The Complainant was employed as a retained Firefighter with Westport Fire Service, Mayo County Council. His employment ended on reaching his 60th birthday on 18 December 2023. Prior to that date, the Complainant sought an extension to his retirement date. That request was refused.
6. The maximum allowable retirement age for firefighters nationally was extended to 62 years some months later in May 2024.
7. The Complainant submits that he was subject to discriminatory treatment on the age ground, as the Respondent’s refusal to grant him an extension to his employment on reaching his 60th birthday was not objectively justified, did not meet a legitimate aim, nor was it a necessary and proportionate means of achieving that aim.
8. The Respondent position is that the Complainant’s retirement at age 60 on 18 December 2023 was the established retirement date for retained firefighters employed by the Council at that time, which was objectively justified and did not constitute discrimination within the meaning of the Act. The extension of the retirement age for firefighters to age 62 was not in effect in December 2023 to enable the Council extends the Complainant’s employment.

Industrial Relations Context - Mandatory Retirement Age for Retained Firefighters

9. Both parties gave an overview of how the maximum allowable retirement age for members of the Retained Fire Services has changed over time.
10. In 1985, a compulsory retirement age of 55 years for Retained Firefighters was introduced at national level. This national measure came about following a recommendation from the Labour Court (LCR 9605, dated 12 March 1985) for the phasing in of a compulsory retirement age of 55 years and a scheme of retirement gratuities.

Option to Extend retirement to Age 58

11. In 2002, SIPTU on behalf of firefighters, sought an increase in the retirement age of 55 years. That matter was referred to the Labour Court which recommended “(t)hat 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 (LCR 17223, dated 12 August 2002).
12. In 2003, an Expert Group established to carry out a review recommended that the retirement age for Retained Firefighters should remain at age 55, with an option to extend employment annually up to age 58, subject to certain conditions which included a medical assessment. The recommendation was implemented by a way of Circular letter LG(P) 19/03 (dated 24 November 2003) from the Department of the Environment, Heritage and Local Government.

Option to extend retirement to age 60

13. In 2020, following engagement between the Union and Management sides, the WRC recommended that the option to remain in employment by way of an annual extension after age 55 be increased to 60 years, subject to certain conditions. The recommendation was subsequently implemented by way of Circular LGP 02/20/20 (dated 8 December 2020) from the Minister for Housing, Local Government and Heritage, as an interim arrangement to enable retained firefighters continue working until age 60 years within the existing legislative framework allowed, subject to certain conditions. The Circular did not change the normal retirement age which remained at 55 years.

Option to Extend retirement to age 62

14. In 2023, following engagement between the Union and Management sides, the WRC issued a proposal (dated 24 August 2023), addressing a range of terms and conditions. The WRC noted the intention of the Union side to pursue a voluntary increase in the retirement age and that Management would, where appropriate, advocate in support of this.
15. In May 2024, the Minister for Housing, Local Government and Heritage confirmed by way of a Circular LGP 04/2024 (dated 3 May 2024) interim arrangements to enable Retained firefighters work until age 62, subject to certain conditions. Thereafter, S.I. No 420 of 2024 Local Government Act 2001 (Retirement of Firefighters) Regulations 2024 (dated 8 August 2024) specified that the retirement age for retained firefighters is age 55 and that retained firefighters can remain in employment up to age 62, subject to certain conditions.

Summary of the Complainant’s case

16. The Complainant was employed as a retained firefighter since 2008. He was promoted to the position of Station Officer in 2019. On reaching age 55, he applied for and was approved for successive contracts extensions. In total he was awarded, five one-year contract extensions. Each contract extension was granted after the Complainant successfully passed an annual health assessment. The Complainant was entitled to and received a gratuity payable at age 58, as opposed to a pension. No salary deductions for gratuity contributions were made for any time worked after age 58.
17. On 16 November 2023, the Complainant sought a postponement of his proposed retirement date. That request was rejected. The Complainant was notified that his employment would end on 18 December 2023. No reasoning was provided and no meaningful consideration given to his application, despite that his request was made during an acute nationwide recruitment crisis in the fire service. The Complainant’s employment ended on 18 December 2023 on his 60th birthday.
18. The Respondent’s actions breach the Act, as the decision to terminate the Complainant’s employment on reaching 60 years of age was not objectively justified and was not proportionate.
19. Historically, there has been an inconsistent application of retirement ages in the Retained Fire Service, and a distinct lack of a legitimate aim and objective justification of that aim prior to each implementation of a new retirement age. The implementation of a retirement age of 55 years in 1985, was applied on an ad hoc basis nationally. In 2003, following the findings of the Expert Group established to review the retirement age, an optional extension to 58 years was agreed, subject to compulsory medical assessments. The extension was not objectively justified before its introduction. In 2004, Dublin Fire Service allowed Retained Firefighters extend employment to 65 years. In 2020, agreement was reached to provide an optional extension to 60 years. No objective justification was provided. This chronology demonstrates the ad hoc nature in which compulsory retirement age of 55 year was introduced by local authorities.
20. In 2023, SIPTU sought an extension of the retirement age to 62 years as part of a Recruitment and Retention Campaign. In August 2023, the WRC proposal provided, inter alia, as follows:

“Retirement Age:

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.”

21. The LGMA, representing Management, could not have agreed to the WRC proposal in the absence of approval from the Department of Public Expenditure (DPER). The implementation of the agreement was merely a matter of administrative procedure within local authorities. SIPTU confirmed acceptance of the WRC proposal on 5 September 2023. In October 2023, the LGMA advised that local authorities would not implement the extension of the retirement age of 62 year, as DPER were the only body with authority to implement the extension through a circular, notwithstanding that a previous extension (from 58 to 60 years) was implemented by local authorities, before any circular issued from DPER.
22. The Complainant was forced to retire at age 60, despite the Respondent being aware since August 2023 of Departmental approval to extend the retirement age past the age of 60 years. In April 2024, the Minister for Housing, Local Government and Heritage approved an increase to maximum retirement age to age 62. The Respondent was aware that this was under consideration and could have issued the Complainant with a further one-year fixed term contract pending the outcome. The Complainant completed an occupational health assessment on an annual basis since the age of 55 and was simply seeking to continue working while he had the physical and mental ability to do so. The Respondent cannot legitimately argue that a mandatory retirement age is a genuine occupational requirement, as there are other firefighters currently working beyond the age of 60 in the fire service.
23. CJEU case law requires objective justification to be evidence based and the analysis that takes place at Member State level still requires a high level of proof. In Seamus Mallon v the Minister for Justice, Ireland, and the Attorney General [2024] IESC 20, the Supreme Court further clarified the requirements necessary to meet the test under the Act. The Supreme Court held that: -

“Legislation will be appropriate for achieving the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systemic manner. Exceptions to a mandatory retirement regime may undermine the coherence of the regime, undermine the objective being pursued and give rise to such inconsistency that the regime will fall outside the scope of Article C (1), one of the Directive".

24. The inconsistent manner of providing exceptions to the retirement age for Retained Firefighters nationally brings the retirement age of 60 outside of scope such that the respondent cannot rely on it to justify the retirement of the Complainant. The Respondent has not explained how they arrived at a legitimate aim and what research, audits or assessments were carried out in relation to the role concerned for the Respondent to conclude that some firefighters should retire at 60 while others can stay working longer.
25. The relevant proportionality test was set out in Donnellan v Minister for Justice and Law Reform and Others [2008] IEHC 467, where the High Court stated that ”any discrimination regarding age must serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than as necessary, i.e., they should be proportionate”. The measure must go no further than is required to reach the legitimate aim and must do so in the least restrictive way possible.
26. In Mallon, the Supreme Court stated that” this must be read in light of the right to engage in work recognised in Article 15, one of the Charter of Fundamental Rights of the European Union but may be balanced by competing interests which may include political, social, budgetary considerations. It is for the authorities of the Member States to find the right balance between the different interests involved, while ensuring that they do not go beyond what is appropriate and necessary to achieve the legitimate aim pursued”.
27. In C477/08 Prigge v Deutsche Lufthansa [2011] ECR 1-8003 the Court – considering if a provision in a collective agreement which stated that the retirement age of commercial pilots was 60 was necessary and proportionate when aviation rules allowed for a retirement age of 65 - held that although the employer's legitimate aim was safety, the measure had gone further than required. The CJEU also considered it too wide a stretch to accept Air Traffic Safety as an aim related to employment policy, the labour market or vocational training. It stated that public safety was not one of the listed aims in the directive that could justify age discrimination.
28. The Respondent’s actions are a clear breach of the Act, as the decision to terminate the Complainant’s employment on reaching 60 years of age was not objectively justified and was not proportionate. The means of achieving a legitimate aim must be appropriate and necessary.

Summary of Respondent’s Case

29. The Complainant’s retirement date was set in accordance with the normal retirement age for retained firefighters. At the date of the Complainant’s retirement on 18 December 2023, the established retirement age for all retained firefighters and for retained firefighters nationally was age 60.

The Legitimate Aim

30. It is accepted nationally, at EU level, and internationally that fire services and therefore firefighters require a high level of physical exertion. This is reflected in maximum retirement ages which are below that of other public sector employees. A difference in treatment which is based on the nature of particular occupational activities or the context in which they are carried out does not constitute discrimination.
31. The setting of a maximum retirement age was legitimate to ensure the proper functioning of fire services reflecting that in fields of work where physical and mental abilities are crucial for the role. The Council is satisfied that characteristics related to the age ground constitute a genuine and determining occupational requirement for the role of firefighter. It is a matter of fact that physical capacities naturally diminish with age. As an employer, the Respondent must consider age and the physical capacities of a firefighter to undertake the role.
32. The duties of the fire service, as it relates to the protection of people and property, requires the use of physical capacity. The nature of those duties requires a particular level of physical capability insofar as physical inadequacies in the exercise of those duties may have significant consequences for fire service employees and members of the public. It follows that the possession of a particular physique may be a genuine and determining occupational requirement for the pursuit of the role of firefighter.
33. In Wolf v Stadt Frankfurt am Main C-229/08 the ECJ confirmed that a German law setting an age limit within the fire service could be capable of justification under Article 4 (1) of the Framework Directive. In Saunders v CHC Ireland Ltd DEC-E2011-142, the Equality Officer referred to the Wolf decision in reaching a decision that a retirement age of 55 that applied to a category of emergency services personnel (helicopter winchmen) was justified by reference to Article 4(1) of the Directive.
34. A failure to provide the Complainant with reasoning in the refusal does not mean that the retirement is discriminatory. In Mallon v Minister for Justice [2024] IESC 20 the Supreme Court found that the absence of individual assessment does not make the measure disproportionate: The Supreme Court also found that in so far as a measure had a legitimate aim or objective there was wide latitude given to an employer to set the mandatory retirement age. That age may change over time for a legitimate policy reason and that change does not negate the policy previously applied in so far as the policy is proportionate. In Mallon the Supreme Court held that employers are best placed to determine the objectively justified age. In this case, there was more involvement from the employees via the working group which included the Union and the employers.
35. The Respondent was unable to accede to the Complainant’s request to remain in employment past his retirement date. The maximum retirement age of 60 was set by Ministerial Circular for which the Council had no discretion. The Respondent acted in accordance with the provisions in place at all times.
36. The Respondent has reviewed all retirements of retained firefighters in the past decade and no firefighter at any grade has remained in employment beyond the age of 60.
37. In August 2023, the WRC noted the Union’s intention to pursue a voluntary increase in the retirement age and that Management would not object to the pursuant of same within the confines of current public sector policy.
38. At all times, it was comprehended by both sides that any change in the retirement age for retained firefighters could only occur after a government decision on retirement ages for uniformed services as a whole. There was no discussion on an interim arrangement pending the decision by Government or for any retrospective application following the decision by government.
39. The retirement age for uniformed services is a cross sectoral public service issue. No approval to extend the maximum retirement age to 62 years was possible pending the issuing of the “Report on Fast Accrual and Mandatory Retirement Age Policy for Uniformed Public Service Employees” by the Department of Public Expenditure and Reform. The Report issued in March 2024.
40. It was necessary for legislation to be enacted and for individual government departments to prepare the appropriate legislation via statutory instrument. Legislation changing retirement ages in the public sector requires both the approval of the Minister for Public Expenditure and Reform and the relevant Minister, in this case the Minister for Housing, Local Government and Heritage.
41. SIPTU raised concerns about the period of time required to draft such legislation, following which interim arrangements extending the maximum retirement age of 62 years were implemented by way of Circular LG(P) -02/2024 (dated 3 May 2024) by the Minister for Housing, Local Government and Heritage. The interim arrangement for firefighters was implemented as quickly as possible in the knowledge that the necessary legislation would be enacted. On 19 August 2024, SI 420 of 2024 Local Government Act 2001 (Retirement to Firefighters) Regulations 2024, was enacted which provided the legislative provisions to set the retirement age for Retained firefighters at age 55 but to enable them to remain on past the retirement of age 55 up to age 62, subject to certain conditions.
42. These measures were enacted after the Complainant had retired in December 2023 and lodged his individual complaint to the WRC. The measures did not include in its scope, provision to enable the Complainant to have his previous maximum retirement age extended to age 62. There was no retrospective element to the provisions of Circular LG(P) 04/2024, were effective from its date of issue and not before. In EDA 211, the Labour Court held: -

“The complainant is seeking to rely on legislation that changed the compulsory retirement age for a category of civil servants, that was not enacted at the time of his retirement, as a basis for his complaint of discrimination on the age ground. The legislation in question did not have retrospective effect and therefore the Complainant’s complaint must fail.”

43. In EDA2560 An Garda Siochana and Tom Ronan, theLabour Court, addressing a statutory retirement age determined that “The Respondent’s decision was nothing more than the implementation of the State’s policy…and that Act does not give any discretion to individual public sector employers to extend an individual public servant’s employment…” They went on to state that; “…It is a matter of public record that the State decided against retrospectively applying a mandatory retirement age to this cohort of public servants…as to have done so could have given rise to a perception of unfairness and may have been inconsistent with those workers’ legitimate expectations.”
44. The Complainant’s retirement age in question is objectively justified by legitimate aims within the meaning of Article 6 (1) of the Directive. There was “a genuine and determining occupational requirement” for a retained firefighter to be young enough to carry out his or her roles. This reflects the nature of the role and the fact that the duties actually performed by retained firefighters required particular physical capacities and is in accordance with the judgement in Wolf (paragraphs 41 to 44), where the ECJ concluded that a measure consisting of fixing the maximum age for recruitment to posts in the fire service at 30 years after having found, on the basis of scientific data available to it, that certain tasks, such as fighting fires, required exceptionally high levels of physical capacities.

The Law Applicable

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

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

1. a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

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

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

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

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

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

Section 6(3(c) provides as follows:

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

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

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

Section 34(4) of the Act transposes Article 6 of the Directive and provides for certain savings and exceptions relating to the family, age, and disability grounds. Subsection (4) of that Section provides: 

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

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

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

Section 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 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.

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

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

Deliberations

46. A compulsory retirement age is discriminatory on the age ground unless it can be brought within the limited exemptions provided in the Act which allow for differences of treatment in certain circumstances.
47. An employer may stipulate a fixed retirement age where that age is objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. The Act also permits an employer to offer an employee who has reached a compulsory retirement age, continued employment on a fixed-term contract, again where to do so is objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.Fixing a compulsory retirement age that goes beyond what is appropriate and necessary to obtain the legitimate aim pursued by the employer falls outside the exemptions provided for under the Act.
48. The Act also stipulates that it is an occupational requirement for employment in any emergency service that those employed are fully competent and capable of undertaking the range of functions that they may be called upon to perform so that the operational capacity of the service may be preserved. This provision provides that fitness and capacity to undertake the duties of the post in question are a genuine and determining occupational requirement for employment in the emergency services. Consequently, the fitness and capacity of retained firefighters may be taken into account in relation to employment in those services without infringing the general prohibition of discrimination.
49. In this case, the burden of proof rests with the Respondent to show that discrimination has not occurred.

Retirement Age for Retained Firefighters

50. While the parties in their submissions made frequent reference to an established retirement age of 60 years, the normalretirement age for retained firefighters nationally is fixed at 55 years. The option to remain in employment on an annual basis thereafter, has been the subject of collective engagement between the Union and Management sides over the years.
51. The findings of an Expert Group in 2003 were that the normal retirement age for retained firefighters should remain 55 years with an option, for those physically capable, to work up to age 58 subject to certain conditions including a compulsory medical assessment. The Expert Group findings were implemented by way of a Government Circular Letter LG(P) 19/03 (dated 24 November 2003).
52. In 2020, an option to extend employment up to age 60, subject to certain conditions, was introduced following collective engagements between Union and Management sides. That agreement was implemented by way of Circular LGP 02/20/20 (dated 8 December 2020) as an interim arrangement, pending legislative changes. Circular LGP 02/20/20 was the relevant circular in place when the Complainant’s employment terminated on 18 December 2023.
53. While both parties referred to matters that post-date the Complainant’s employment and the lodgement of his complaint to the WRC, the Court’s jurisdiction in the within appeal is confined solely to assessing if the Complainant was subject to less favourable treatment on the age ground when his employment ended on 18 December 2023.
54. The question for the Court to consider is whether the termination of the Complainant’s employment on 18 December 2023 on the expiry of his fixed term contract of employment was objectively and reasonably justified by a legitimate aim, and the means of achieving that aim were appropriate and necessary.

Was there a legitimate aim?

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

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

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

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

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

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

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

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

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

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

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

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

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

56. The test to be applied is whether the rationale for a mandatory retirement age appears reasonable, while not undermining or frustrating the general prohibition on discrimination on grounds of age.
57. In this case, the aim identified by the Respondent for having a mandatory retirement age for retained firefighters is to ensure the proper running of the fire service. It submits that physical and mental characteristics constitute a genuine and determining occupational requirement for the role of firefighter where physical and mental abilities are crucial for the role. As physical capacities diminish with age, the Respondent submits that it must consider age as an essential characteristic of the proper exercise of physical capacities of a firefighter to undertake the role.
58. The Court is satisfied that such an aim falls within legitimate employment policy objectives.
59. In 2003, the Expert Group carried out a comprehensive assessment and set out its rationale for recommending a normal retirement age of 55 years, with the option for an annual extension to 58 years subject to medical assessment. In its findings it noted: -

The nature of the work performed by Retained Firefighters is hazardous and physically demanding.

The role of Station Officer and Sub Officer and Driver Mechanic at incidents are not exactly the same as the firefighter category. However these jobs are still demanding and stressful, and the same minimum physical standards and maximum retirement age as for FireFighters should apply to these positions and all subsequent references to Firefighters in this report should be taken to include those higher categories in the Retained Fire Service.

Any firefighter who is not fit for work when measured against key indicators presents an unacceptable risk to himself, his colleagues and the public.

The potential level of unacceptable risk increases beyond the age of 50 and accelerates over the years. The fixing of a precise suitable retirement age for all firefighters is not an exact science and relates to each individual's physical fitness. However, it is essential that there should be a specific retirement age for old firefighters.

With the accelerated level of risk, increased medical assessment is essential…

The issues in respect of the retirement age for retained firefighters are matters of health and safety for the individual and the employer, related to the nature of the job. Nothing in the evidence presented to the Expert Group suggested that the age of 55 as a compulsory retirement age is discriminatory on the grounds of age or the part time staff is also employees.”

60. The parties do not dispute that the work undertaken by Retained Firefighters - including that of Station Officers like the Complainant - is physically demanding or that the physical abilities required for the role are crucial to ensure the proper functioning of the fire service.
61. The Respondent has set out objective reasons to justify fixing a mandatory retirement at age 55, with the option of an annual extension to age 60, subject to certain conditions, at the time the Complainant’s employment ended in December 2023. Having regard to the above, the Court is satisfied that the Respondent has established that a mandatory retirement age for firefighters was objectively and reasonably justified by a legitimate aim.

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

62. The fact that the Respondent did not expressly communicate or explain the reasoning or legitimate aim underpinning the mandatory retirement age to the Complainant does not negate or invalidate the existence of such a legitimate aim. A failure to provide the Complainant with reasoning in the refusal does not mean that the retirement is discriminatory.
63. As established in Mallon – which addressed the compulsory retirement age of a County Sherriff who was required to retire at age 70 - it is not necessary for a measure to be expressly cited to objectively justify a legitimate aim. Collins J held that a “general context” can be relied upon in retrospect to argue that a particular measure is objectively justified. The proposition that an individual assessment is required to justify a mandatory retirement age was also rejected. The Supreme Court found that the absence of individual assessment does not make the measure disproportionate:

76.” …the absence of flexibility on a case by case or role by role basis does not, on its own, render a measure disproportionate. But it appears to me that the CJEU jurisprudence goes further than that. There is no principle that case by case or role by role assessment is presumptively required or that it must be shown to be impractical if a “blanket” retirement age is to be justified. On the contrary, the CJEU has recognised that it is reasonable for Member States to adopt generally applicable mandatory retirement rules, without any requirement for individual capacity assessment, and that the “consistent and systematic” and “coherent” application of such rules is not simply permissible but is in fact an important element of the proportionality analysis under Article 6(1) of the Directive. Nothing in the CJEU jurisprudence suggests that an employer is required to justify the application of a general retirement rule to an individual employee. Such a requirement would, of course, substantially negate the benefit of having such a rule in the first place.

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

Was the termination of the Complainant’s employment on 18 December 2024 on the expiry of his fixed term contract of employment an appropriate and necessary means of achieving the Respondent’s legitimate aim of ensuring the proper running of the fire service?

65. In considering that question, the Court must examine whether the fixing of a mandatory retirement age of 55 - with the option to remain in employment up to age 60 by way of annual fixed term contracts, subject to certain conditions - maintains a proper balance between the competing interests of the Respondent with the Complainant’s legitimate wish to prolong his working life. The proportionality test set out in Donnellan means that a mandatory retirement measure must go no further than is required to reach a legitimate aim and must do so in the least restrictive way possible.

Consistent and Systematic manner

66. The Complainant’s representative contends that the Respondent cannot legitimately argue that a mandatory retirement age is a genuine occupational requirement, as there has been an ad-hoc and inconsistent application of retirement ages across the retained Fire Service, with firefighters in other local authorities remaining in work beyond the age of 60. The Respondent disputed that assertion.
67. The manner in which a mandatory rule is implemented is of relevance to the Court’s considerations. No evidence was submitted in this case to support the contention that there was an inconsistent or ad hoc application of retirement ages across the Retained Fire Service. Neither was any evidence presented to support the contention that other firefighters elsewhere were allowed to work beyond the age of 60.  In the absence of such evidence, it is reasonable to conclude that the mandatory rule has been implemented in a consistent and systematic manner.

Annual Extensions

68. The mandatory retirement age for firefighters of 55 years is lower than normal retirement ages in other occupations. In the Court’s judgment, the availability of optional annual extensions up to age 60 and subject to certain conditions, was an appropriate and proportionate means of implementing the mandatory rule, that balanced the rights of Respondent and Complainant at the relevant time. Furthermore, the requirement to undergo an annual medical assessment up to the age of 60 was a proportionate measure that allowed for individual assessments that addressed the Respondent’s genuine and determining occupational requirements for the role, where physical and mental abilities are of key importance.

Financial Impact

69. The financial impact of a mandatory rule is relevant to the Court’s considerations. The Complainant’s retirement at age 60 is lower than the general pensionable age for the purposes of the State pension. Of note is that the Complainant was entitled to avail of a retirement gratuity on reaching age 58. The fact that there was a retirement gratuity, in lieu of a pension provision, is a relevant factor in any balancing exercise when considering whether a given measure is appropriate and necessary. In this case, the Complainant availed of his retirement gratuity, which lessened the financial impact of his retirement to a certain degree. However, the Court heard that his circumstances were such that he was required to seek other employment when he left the Service in December 2023.

The extension of the maximum retirement to age 62

70. The Complainant contends that the termination of his employment on reaching age 60 on 18 December 2023, in circumstances when there was widespread knowledge that an increase to the maximum retirement age was imminent, was a disproportionate response that went beyond what was “appropriate and necessary” to obtain the objectively justifiable aim of ensuring the proper running of the fire service, such that the Respondent cannot rely on the exemptions provided for under the Acts.
71. It is evident that the maximum allowable retirement age for firefighters was subject to review over time. Of relevance is that extensions to the maximum allowable retirement ages were implemented following engagements between Management or Union sides using established industrial relations processes. Such processes, which provide for a level of flexibility subject to negotiation outcomes, are a relevant consideration when assessing whether the means adopted in this case were a proportionate manner to pursue a legitimate aim.
72. In 2023, the retirement age was subject to a further review when the Union side sought to extend the maximum retirement age to 62. The WRC proposal that issued in August 2023 noted the intention of the Union side to pursue a voluntary increase in the retirement age of firefighters and that Management would, where appropriate, advocate in support of this initiative within the confines of current public sector policy on retirement in emergency services.
73. While the Complainant’s Union representative contends that the Management side could not have agreed to the WRC proposal without approval from the Department of Public Expenditure, a plain reading of the text reflects the Union’s intention to pursue a claim to increase the retirement age, rather than an agreement, in principle or otherwise, to extend the maximum age allowable to a specific stated age.
74. When the Respondent (by letter dated 27 November 2023) rejected the Complainant’s request to remain in employment beyond December 2023, it referred to engagements at national level to increase the retirement age for firefighters beyond 60 years, as follows: -

“You will be aware that SIPTU have raised the increase to the retirement age beyond 60 years as a key issue and that the LGMA have repeatedly explained that the terms of the single pension scheme are a wider public service issue that would require amendment to revise the prevailing pension arrangements. I understand that the Department of Public Expenditure, NDP Delivery and Reform are actively reviewing the single pension scheme. Unfortunately, until such time as that review is complete no further revision of the retirement age of retained firefighters can be considered and hence your employment with Mayo County Council will cease at the end of your current contract which expires at age 60.”

75. The correspondence indicates that collective engagements on extending the retirement age beyond 60 years were ongoing at that time. No evidence was proffered to say when the collective engagements concluded or when agreement was reached.
76. The Court was referred to SIPTU correspondence addressed to the Minister for Housing, Local Government and Heritage on 13 March 2024 which notes that firefighters were excluded from a recent announcement about a Government plan to change the retirement ages for members of the An Garda Siochana, the Defence Forces and the Prison Service to boost retention in those services.
77. Ultimately, an extension of the maximum retirement age to age 62 was implemented by way of Circular LG(P) 04/2024 (dated 3 May 2024) as an interim measure pending legislative changes, which were enacted in August 2024. The Complainant had left the employment before these changes came into effect. The Circular did not provide for retrospective application of the agreement.
78. While a statutory right to equal treatment cannot be offset or limited by a collective agreement, in the Court’s view, the collective bargaining mechanism in place between the Respondent and Trade Unions reflects the type of balancing exercise envisaged by the Act in relation to establishing mandatory retirement ages. The collective bargaining process provided a mechanism to allow the Union side to engage with the Respondent on what is an “appropriate and necessary” way of implementing a mandatory retirement rule.
79. While both parties referred to interim arrangements and/or retrospective application measure which formed part of previous engagements between the Management and Union sides when reviewing the maximum allowable retirement age, no evidence was proffered to the Court to indicate that interim or retrospective measures formed part of an agreement reached to extend the maximum retirement age to 62 years in 2024.
80. The Respondent’s decision to enforce the Complainant’s retirement at age 60 implemented the relevant policy in place at the time as reflected in Circular LG(P) 02/2020. The Circular did not give the Respondent any discretion to extend the Complainant’s employment beyond his 60th birthday. It was not open to the Respondent to issue the Complainant with a further one-year fixed term contract pending the outcome of the collective engagement process.
81. The Court heard that since his retirement, the Complainant applied for a firefighter post with the Respondent and was rehired into a more physical role on 14 January 2025. While that may be so, the Court does not consider it relevant to its considerations in this appeal. The fact that there was a policy change in 2024 that extended the maximum allowable retirement age to 62 years does not negate the policy previously applied in so far as that policy was a proportionate way of balancing between the competing interests at play at that time.
82. On balance, the Court is of the view that imposition of a maximum retirement age of 60 at the relevant time was not disproportionate. The Labour Court’s role is not to carry out a de novo assessment of the Respondent’s decision to enforce the mandatory retirement of the Complainant, but rather to assess if the decision made at that time appears to be unreasonable such that it falls outside the limited exemptions provided in the Act which allow for differences of treatment in certain circumstances.
83. The CJEU jurisprudence allows the State a “broad discretion” in its judgment as to how best to balance broad and competing socio-economic considerations. It is for the competent authorities to “find the right balance between the interests involved”.
84. The Act allows for the application of a different retirement age to a specific category of employees where there is a rational and objective basis for doing so. The Court is satisfied that the Respondent is best placed to assesses what is required to ensure that proper functioning of its fire service. In view of the discretion afforded to the State in pursuing social and employment policy objectives, the Court is satisfied that the mandatory retirement of the Complainant was an appropriate and necessary measure at that time.

Determination

85. For the reasons set out herein, the Court is satisfied that the Complainant was not discriminated against on the ground of age. The Respondent’s appeal succeeds. The Decision of the Adjudication Officer is set aside.

	Signed on behalf of the Labour Court
	Katie Connolly
AL	______________________
06/07/2026	Deputy Chairman

NOTE

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