Complainant

Respondent

Parties

Aidan  O'Mahony

Irish Prison Service

Representatives

Ellen Walsh BL, instructed by Daithí O’Maonaigh, Ormonde Solicitors

Caroline Carney BL, instructed by Zoe Hughes , Chief State Solicitor's Office

Act

Complaint Reference No.

Date of Receipt

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

CA-00058281-001 WITHDRAWN AT THE HEARING

15/08/2023

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

CA-00058281-002

15/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00058281-003

15/08/2023

The Complainant commenced his employment with the Respondent on 23 November 1987. His employment terminated on 1 June 2023.

On 15 August 2023, the Complainant referred his claims to the Director General of the WRC.

The claim pursuant to the Employment Equality Acts 1998, as amended alleging that the Complainant has been discriminated against by the Respondent by reason of his age in conditions of employment (CA-00058281-001) was withdrawn at the adjudication hearing.

Summary of direct evidence and cross-examination of the Complainant

The Complainant outlined his career with the Respondent. He said that he was an Assistant Chief Officer (‘ACO’) and towards the end of his career he was acting up at the weekends. He commenced his employment with the Respondent on 23 November 1987 and was forced to retire on 1 June 2023.

The Complainant said that he unsuccessfully applied for an extension. There were no health issues; no performance issues; he was very competent; and he was acting up. Yet, it was decided that on 1 June 2023 he was unable to do his job. He said that it was a blanket refusal.

The Complainant said that there was no appeal offered to him, but he appealed the decision anyway. He said that some weeks after his retirement he received a letter “in the spirit of an appeal process“. The Complainant said that there was no engagement regarding his initial request. Neither was there any engagement after he wrote to the Respondent appealing the decision. The Complainant said that there was no review, no alternative roles were considered, and he was not referred to an occupational health specialist. He said that he was fit and able to do the job. He further said that he was aware that some retired officers carry out interviews of recruits.

The Complainant said that there is upper mobility within the Respondent organisation and one retained ACO would make no difference. He said that the age profile of the workforce in Limerick is quite young. He also said that that there are more bed spaces and more prisons opening and, as a result, a year ago there was a shortage of officers.

The Complainant asserted that having older prison officers is an advantage as they are better at conflict resolution.

The Complainant accepted that he had signed his contract. He said that he did not receive updated terms of employment, and other staff who are on the same terms of employment were still working.

In cross-examination, the Complainant accepted that the individuals who dealt with his request had no discretion regarding the decision. He also accepted that the work is conducted in a stressful and demanding environment, it is labour intensive, and that confrontations with prisoners are frequent cause of injury to prison officers.  He said that he has been slashed, had broken bones etc. He agreed that the role requires strength, ability and coordination, and that emergencies require a response within seconds as a delayed response could be dangerous. The Complainant did not dispute that capabilities of an individual change over time and, depending on the individual, as one gets older, some tasks can be difficult to perform. He did not dispute that the Respondent needed to ensure that all prison officers are fit physically and mentally, and that safety and operational effectiveness required a mandatory retirement age. However, the Complainant said that sometimes a 60-year-old is fitter than a 30-year-old, he said it was a matter of individual fitness.

The Complainant agreed that “in totality”, prison officers have a consistently high level of sick leave but said that it was certainly not in his case.

While he agreed that the Respondent needs to plan recruitment effectively, the Complainant said that his retirement had nothing to do with workforce planning. When it was put to him that having a mandatory retirement age leads to effective workforce planning, he said that workforce planning did not have to apply to retirement. He had difficulty with understanding that he was fit and needed on 31 May but not on 1 June 2023.

It was put to the Complainant that a mandatory retirement age can support maintaining an age‑balanced workforce. He responded that, if that is its purpose, it does not achieve it.

When it was put to the Complainant that in the absence of a mandatory retirement age, employees could stay working indefinitely, he replied that they could be dismissed if their sick leave was excessive. He said that people could be sacked for other reasons, not for their age.

Regarding intergenerational fairness, the Complainant said that it was a lovely catchphrase.

The Complainant agreed that he had a full service and in pension terms, it would not benefit him to work longer.

It was put to the Complainant that it was open to prison officers to apply for clerical roles. The Complainant said that he was not aware of that possibility. He said that, at that time, his understanding was that he would have to apply through publicjobs.

The Complainant accepted that he signed his contract which specified a retirement age. It was put to the Complainant that the Respondent was not in breach of the contract.

The Complainant agreed that that there was a distinction between an ACO’s and a Governor’s role. But he said that he was “catching up”.  He said that when he was acting up, he ultimately was becoming a Governor at nighttime in the absence of the Governor. It was put to him that the Governor would be absent but would be on call. He agreed but said that the responsibility would be his.

In redirect, the Complainant said that he had no injuries in the period leading up to his retirement, but he did during his employment. He said that, in his experience, older prison officers were taking less sick leave. The Complainant acknowledged the intense nature of the role but said that when there was an incident, the two officers in their sixties were first to deal with the issue. He said that he did not suffer the same psychological stress either. He said that experience comes with age i.e. ability to deal with stress and defuse situations.

The Complainant reiterated that in a case of long-term illness, a prison officer could retire before turning sixty, subject to a Chief Medical Officer’s assessment.

Summary of direct evidence and cross-examination of Mr Ned Whelan, former Governor

Mr Whelan said that he requested and was granted a two-year extension permitting him to work past retirement age. He said that there were huge works ongoing at that time. Mr Whelan said that there was no assessment and no fitness test. Mr Whelan said that he had made the request to stay for extra two years before he was due to retire and it was confirmed he could stay. Mr Whelan said that he was not aware of anyone else who stayed working longer.

In cross-examination, Mr Whelan accepted that the mandatory retirement age was 60. He accepted that he did retire at 60. It was put to Mr Whelan that he was engaged on different terms of employment. He said that he was still in charge of the campus.

Mr Whelan was asked if the premise of his re-engagement was specific to his expertise. He said that there were lots of works in Mountjoy campus around that time which involved moving prisoners. He had particular expertise in that context.

It was put to Mr Whelan that he returned after his retirement in an unestablished capacity, he replied “if you say that”.  He agreed that this was due to his particular knowledge and expertise that he became the campus Governor after his retirement.

In redirect, Mr Whelan confirmed that he drew his pension at the time of his retirement.

Summary of direct evidence and cross-examination of Mr Steven Kelly, a serving Assistant Chief Officer

Mr Kelly said that he is 56 years old. He is serving at the same grade as the Complainant and was employed on the same terms as the Complainant.

Mr Kelly said that most staff in Limerick have less than 5 years of experience.

Mr Kelly said that he enquired about working longer and got an email saying that he just needed to inform HR that he wanted to stay longer. He said that it was not communicated to him that he could now work until 62. He said that he was not medically assessed.

Mr Kelly expressed his opinion that the Complainant was able to continue to work past 60.

In cross-examination, Mr Kelly confirmed that he was aware that he was due to retire on a specific date in 2031, on his 62nd birthday. He confirmed that it was his understanding. He acknowledged that the Complainant retired in 2023 and confirmed his understanding that the mandatory retirement age increased to 62 after the Complainant’s retirement.

Mr Kelly did not dispute that he has not gone through the retirement process because his mandatory retirement age was 62. For that reason, HR told him he could work beyond 60.

In redirect, Mr Kelly was asked to clarify if he mentioned his age in his communication with HR. He confirmed that he asked HR if he could continue working past 60.

Summary of direct evidence and cross-examination of Mr Sean Carey, Nurse Officer

Mr Carey gave evidence that he joined the Respondent in 1997 as a prison officer but subsequently completed a nursing scholarship. He is currently a Nurse Officer. He is 60 years old.

Mr Carey asserted that the staff are predominantly younger, it was his assertion that some 20% are older crew. He said that the younger cohort do not have the type of experience the older crew would have. He said that continuous professional development is in place.

Mr Carey said that he was not informed directly about the change of the mandatory retirement age to 62 but he had heard of the change.

Mr Carey said that his HR Governor told him to email HR that he intended to work after his 60th birthday. He did so and got a response to work away. There was no requirement for a medical assessment or an interview.

Regarding the intense nature of the role, Mr Carey said that he was at the peak in his job at the moment. He said that he is continuously trained in manual handling, unarmed combat, restraint etc. He said that staff get retrained and re-tested, if needed. He said that he was looking forward to going to work every day. He felt blessed with his health.

Mr Carey said that he worked with the Complainant for 25 years, they have been in the most stressful situations and were able to do the job. He stated that there had been a loss of experience which was difficult to replace, and in his view, it made little sense to allow that experience to be lost.

In cross-examination, Mr Carey agreed that his retirement age was 62. He said that he was due to retire in 2027. Mr Carey did not dispute that at the time when the mandatory retirement age was 60, he did not reach the retirement age.

It was put to the witness that, in the context of training, people try to “get over the line”, pass the testing.

In re-examination, in the context of the assertion that people are not dismissed for failing an assessment, Mr Carey said that there is a process linking with the CMO and HR and a decision is made depending on the person’s fitness and physical health.

Mr Carey said that he was not certain, but the mandatory retirement age could have been 60 in his original contract. While he did not receive any specific update, he was aware that was changed to 62 in 2024.

Summary of direct evidence and cross-examination of Mr Paul Kennedy, Senior Prison Officer

Mr Kennedy said that he is under 60 years of age. He joined the Respondent in 1996 as a Prison Officer.

Mr Kennedy said that majority of the officers are younger, he said that he liked to work with both the younger and the older cohort. He asserted that having older staff has benefits e.g. experience, knowledge, and calmness. He said that it was incorrect that as people grow older, they take more sick leave; he said it was quite the opposite. Regarding workplace injuries, he said it was hard to balance but one becomes better with conflict resolution and prevention of injuries before they occur.

Mr Kennedy said that he was told by the HR Governor that there was no retirement process. He could have retired at 50 but chose to work longer. When queried, he specified the date on which he would turn 60 and enquired about the process. He was told he did not have to do anything. He said his fitness was not assessed. He said that he felt more competent now than ever before.

Regarding the Complainant, Mr Kennedy said that the Complainant was a professional and he had always enjoyed working with the Complainant and sought his advice.

In cross-examination, Mr Kennedy was asked on what basis he formed an opinion that workplace injuries decrease with age. He replied that he made an assertion it was on the basis of his knowledge of the prison environment, speaking generally.

In the context of expertise, Mr Kennedy confirmed that the job could be physically demanding, labour intensive, and volatile.

Mr Kennedy said that he is a better Prison Officer as he approaches his sixties than he was before as it came with experience. He suggested that older people deal better with psychological challenge. He said that he was pretty observant and he had not noticed his colleagues having any difficulties with the physical demands of the job.

Mr Kennedy said that he has not looked into his retirement. He confirmed that he inquired with HR if he could work past 60 and that his mandatory retirement age was 62.

In redirect, Mr Kennedy asserted that older staff have more calmness and can resolve conflict better.

He said that he could retire at 59 and that no formal process existed at that time. He further said that no process was communicated to him regarding his retirement at age 60.

Additional witnesses

Ms Walsh BL requested a brief recess for the to consider whether additional witnesses were required to be called for the Complainant. She subsequently confirmed that she was ready to close her case.

Written submission of the Complainant

Introduction

The Complainant was employed by the Respondent as an Assistant Chief Officer (“ACO”) of Limerick prison. He was employed from 23 November 1987 until his retirement on 1 June 2023, working his way through the ranks over the years.

At the time of dismissal his gross salary was approximately €115,544.76 per annum including allowances and overtime.

Following his dismissal the Complainant again became employed part-time. He also undertook some casual work as an executive driver but has not had any work in that area in 2024 or 2025.

The Complainant seeks compensation for discriminatory dismissal in the form of mandatory retirement due to his age, where no justification existed for same, and compensation for failing to provide him with a copy of the terms and conditions of his employment having requested same from his employer.

Facts and Chronology

The Complainant made an application on 18 March 2023 for an extension of service beyond the retirement age of 60.

The Respondent failed to reply to the application until some two months later, on 5 May 2023. The Respondent refused his application citing the clause within his original job offer some 36 years previously, which had a compulsory retirement age. This job offer, read in conjunction with Circular 13/1975, was signed by the Complainant in 1987 and was never updated despite numerous role changes/promotions over the years. It also fails to take account of more recent jurisprudence and societal shifts, such as longer life expectancy and longer careers.

This refusal was in spite of the Complainant having an excellent record and a sick leave record of 12 days over the prior four years (covering the COVID-19 period). The Complainant worked for over three decades without issue and rose through the ranks based on his high level of competence and performance. He is medically fit and, by his own admission, capable of performing any role in the Prison Service both above and below his role of ACO.

On 10 May 2023 the Complainant attempted to appeal against this decision by way of email, however the delay from the Respondent was again so lengthy that the Complainant had no choice but to be forced into retirement in the interim. The Respondent reverted on 12 July 2023 wherein it was stated that, remarkably, there was no appeal mechanism but that they were responding “in the spirit of an appeal process” and that the Complainant would need to retire (he had already done so at this point) despite there being no formal process for the consideration of an appeal.

The Complainant was intimately familiar with both his position and the positions of others in Limerick prison at the time of his retirement. During the period immediately preceding and following the Complainant’s retirement from Limerick prison (approximately three weeks before and after 1 June 2023), there were a significant number of promotions to the rank of Assistant Chief Officer (‘ACO’) within Limerick prison. Five named officers were promoted to ACO. In addition, two further officers were promoted to ACO on transfer from other prisons, and one ACO transferred from Cork to Limerick. One officer who was promoted to ACO subsequently decided to transfer to another prison. In total, nine officers were promoted to ACO in Limerick alone during this period.

The Complainant was the only ACO who retired from Limerick Prison during this timeframe, and it is believed that no other ACO retired from the entire service during this period. All officers in Limerick who applied for promotion and successfully passed their interviews were promoted within Limerick, with three additional officers arriving from other prisons.

This does not take into account the numerous officers promoted to ACO across the country; it is understood that no candidate on the entire promotion panel will fail to be allocated a position. Promotion panels are continuously active, with twelve senior grade ranks above officer distributed across three different streams in twelve prisons nationwide. These positions are available to officers in every prison, providing hundreds of opportunities for promotion throughout the country. It is therefore clear that, had the Complainant been granted an extension of service, it would not have prevented any officer within the service from achieving promotion.

No objective justification has been given to the Complainant for the termination of his employment on the grounds of age. The said job offer/clause/circular is now some 38 years old and has failed to take into account the considerable changes in law and practice in the last almost-four decades.

The Complainant submits that several other colleagues known to him continued working past the retirement age enforced against him, or were informed that they may stay on, namely:

1)      Steven Kelly - serving ACO, age 57, will give evidence that he has been informed that there is no process for remaining past retirement age, just to email HR saying he is staying.

2)      Sean Carey - serving Officer, age 61. Will give evidence that he signed up on the same terms as the Complainant and is still working. No application process was required.

3)      Paul Kennedy - serving Officer, age 59, will give evidence that there is no specific process required for remaining past retirement age.

4)      Ned Whelan - retired Governor, will give evidence that he was permitted to remain past retirement age.

Each of the above-named personnel joined the service of the Respondent on the same terms as signed by the Complainant.

The Complainant was forced to retire purely on the grounds of his age and was devastated that he was made to do so. The Respondent has acted in flagrant disregard for the Complainant’s rights under the equality legislation and the Complainant requests that the WRC uphold his complaints in the interests of natural justice.

The Complainant’s solicitors wrote to the Respondent on 4 August 2023 seeking an explanation for the decision which had been made, and the grounds justifying the decision by way of request under section 76 of the Employment Equality Acts. The letter also requested a copy of the Complainant’s contract of employment pursuant to his rights under section 6 of the Terms of Employment (Information) Act 1994. No terms of employment were provided in response to this letter.

Prison Officer Retirement Age

Statutory Position

Prior to the 2024 amendments, prison officers, including Assistant Chief Officers, were treated as outside the general ‘new entrant’ retirement-age provisions of the Public Service Superannuation (Miscellaneous Provisions) Act 2004 because their superannuation entitlements (and related pensionable ages) were governed by the distinct statutory regime established under the Superannuation (Prison Officers) Act 1919, as preserved and specifically referenced in the 2004 Act and subsequent legislation. This separation was maintained through statutory definitions and carve-outs which continued the application of the 1919 Act to prison officers and prevented the 2004 Act’s general retirement-age rules from automatically applying to them, with retirement arrangements for prison officers being dealt with on a sectoral basis.

The 2004 Act, while introducing new rules for many public servants, preserved the special position of prison officers by recognising the continued operation of the 1919 Act as the relevant lex specialis for that group. In particular, the 1919 Act (as amended, including amendments made by or consequent upon the 2004 Act) provides for pensionable/retiring ages for prison officers which differ from the general civil service position. For the avoidance of doubt, a lower minimum pension/retiring age is not, of itself, determinative of a compulsory retirement age, but it evidences that prison officers were being dealt with under a distinct statutory scheme rather than the general public service framework.

In December 2017, a Department of Public Expenditure and Reform Report stated, in relation to the 2004 Act:

“The Government further agreed that the new compulsory retirement age would not apply to certain groups who, due to the nature of their work, are required to retire early. Members of An Garda Síochána, the Permanent Defence Force, Firefighters and Prison Officers are the constituent groups in this category. It was agreed that retirement age for these groups can only be dealt with at sectoral level where the detailed policy, operational and manpower issues relevant to those groups can be appropriately considered.”

This supports the understanding that prison officers were not to be absorbed into the general compulsory retirement age approach, and that retirement arrangements for prison officers were to be addressed at sectoral level.

The Public Service Pensions (Single Scheme and Other Provisions) Act 2012 continued to recognise the distinct position of prison officers by defining “prison officer” (for relevant purposes) in terms that referenced the 1919 Act (as amended). It also continued to treat certain prison grades as remaining within that statutory regime, reinforcing the legislative intent that prison officers’ retirement and superannuation arrangements were not simply to be governed by the general public service framework.

The Civil Service Regulation (Amendment) Act 2005 amended the 2004 Act to clarify that the 2004 Act’s general provisions regarding minimum pension age did not displace earlier or scheme-based entitlements to superannuation at a lower age, such as those arising under the 1919 Act. This reinforced the separation between the general public service approach and the prison officer regime, and reduced scope for argument that the 2004 Act silently overrode the prison officer position.

Most recently, the Courts, Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Act 2024 amended section 13 of the 2004 Act to provide expressly that the section 13(1) provision relating to the reckoning of service for superannuation purposes after a specified age does not apply to certain categories, including prison officers (as defined by reference to the 2012 Act). The effect of this is that, for the purposes of section 13, prison officers remain treated distinctly from other public servants under the 2004 Act, and matters affecting their retirement arrangements fall to be dealt with under the sector-specific statutory regime and any applicable sectoral policies.

The Complainant acknowledges that the statutory prison officer regime originates in the 1919 Act and was enacted long before modern equality law (and indeed the State) was recognised; but that does not mean that an individual’s employment equality rights didn’t exist at that time. In other words, the existence and age of that statutory scheme does not displace the application of the Employment Equality Acts to the employment relationship. The Complainant therefore relies on the Employment Equality Acts to challenge the compulsory retirement outcome as applied to him, contending that retirement at the relevant age must be capable of objective justification and must be applied in a proportionate manner having regard to the individual circumstances.

Accordingly, the Complainant’s application to remain in employment past the standard retirement age is not contradicted by the 2004 Act (which, as confirmed by the 2024 amendment, continues to treat prison officers differently for the relevant superannuation purposes) and must be addressed within the applicable prison officer regime and sectoral decision-making arrangements, in a manner that is compatible with equality law. The Complainant submits that his request required a reasoned and evidence-based justification for compulsory retirement, including consideration of whether, in his circumstances, compulsory retirement was a proportionate means of achieving any legitimate aim, and whether any less discriminatory alternatives were available. The WRC is respectfully invited to interpret and apply the relevant provisions and principles so as to require that such justification and consideration be demonstrated and, on the facts of this case, that the Complainant should have been permitted to remain in employment beyond the standard retirement age.

Discrimination

Statutory Position

Section 6(1) of the Employment Equality Act 1998 (“the 1998 Act”), as amended provides that discrimination shall be taken to occur where:

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

(i)                  exists,

(ii)                existed but no longer exists,

(iii)               may exist in the future, or

(iv)                is imputed to the person concerned.

Subsection (2) goes on to specify the various discriminatory grounds, including, as between any two persons, “(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”).”

Section 34(4) of the 1998 Act, as amended provides that:

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

Section 37(2) of the 1998 Act provides for an exception to a claim of discrimination on the age ground where the employer can show a genuine and operational need:

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

In the instant matter, it is submitted that the mandatory retirement age outlined in the aged and outdated document relied on by the Respondent does not constitute a genuine and determining occupational requirement as provided for under section 37(2)(a) of the 1998 Act as amended or as outlined under Article 4.1 of the Employment Equality Framework Directive 2000/78/EC which states:

“1. Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.”

Neither is the mandatory retirement age objectively justified as a legitimate, necessary, appropriate, and proportionate requirement as set out collectively under section 37(2)(b) of the 1998 Act as amended and Article 6.1 of the Employment Equality Framework Directive 2000/78/EC which states:

“1. Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.”

The Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (S.I. No. 600/2017) outlines best practice in industrial relations for managing engagement between employers and employees approaching a mandatory retirement age. It also lists a range of legitimate aims that may justify the setting of a mandatory retirement age, none of which have been referred to or relied upon by the Respondent in this case.

Discriminatory Dismissal

Section 8 of the Employment Equality Act 1998 as amended specifically prohibits termination of employment where to do so would constitute an act of discrimination. Section 8(1) states:

“(1) In relation to—

(a)    access to employment,

(b)    conditions of employment,

(c)     training or experience for or in relation to employment,

(d)    promotion or re-grading, or

(e)    classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.”

In that regard, ‘conditions of employment’ encapsulates one’s dismissal from employment. Section 8(6)(c) goes on to state:

“(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one— …

(c)     the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

In practical terms, the Complainant was compelled to retire when other colleagues carrying out similar duties were not and he was expressly refused permission to remain in employment despite providing compelling and reasonable reasons to be allowed to remain working. This is clearly discriminatory against the Complainant on the ground of his age.

Common Law Position

The courts and the WRC have time and again upheld the position that dismissing a person from their employment solely due to the fact that they have reached retirement age, without any other justification, may be discriminatory.

The current and most recent legal position on retirement age was set out by the Supreme Court in Seamus Mallon v. The Minister for Justice, Ireland, and the Attorney General [2024] IESC 20 where the Court considered the compatibility of a mandatory retirement age with Council Directive 2000/78/EC. The Court held that a mandatory retirement age does not constitute unlawful age discrimination where it pursues a legitimate aim and the means of achieving that aim is appropriate and proportionate, in accordance with Article 6(1) of the Directive and relevant CJEU jurisprudence. This effectively mirrors the statutory position as set out above and aligns both the statutory and common law positions.

The Supreme Court held that:

“[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”.

In the very recent case of Maurice Dunphy v South Dublin County Partnership Company Limited by Guarantee ADJ-00043647, the Complainant’s job offer provided for a compulsory retirement at the age of 66. Prior to this date, the Complainant wrote to the Respondent requesting an extension, this was refused. Ultimately in that matter, the Complainant was found to have been discriminated against, and an award was made in his favour.

In the case of Deborah Tolan v Lifford Credit Union Ltd ADJ-00035673, the WRC did not accept the ‘contractually fixed’ argument wherein the Respondent claimed it was merely the end of an employment relationship in accordance with the terms and conditions of that employment and did not accept it was objectively justified to facilitate legitimate aims.

In the case of Mary Costigan v South Leinster MABS CLG ADJ-00041989, the Adjudicator found:

“In conclusion, I find that a retirement age was provided for in the Complainant’s contract of employment and was known to her. Based on the evidence presented to the hearing, I find that the collectively agreed mandatory retirement age of 66 within the Respondent organisation is objectively and reasonably justified by legitimate aims but, in relation to the compulsory retirement of the Complainant, the means of achieving these aims was not appropriate and went further than what was necessary. The effects of discrimination crystallised when the Complainant’s employment was terminated on 4 May 2022 thereby denying her a further period of employment. The Complainant had an exemplary work record, and she was entirely capable of working beyond age 66.

For the foregoing reasons, I find that the Complainant’s compulsory retirement at age 66 was constituted an act of discrimination within the meaning of s 6 of the Acts. I determine that the appropriate form of redress is an award of compensation under s 82 of the Acts.”

In Patrick O’Callaghan v Ferrero Ireland Ltd ADJ-00043459, the Respondent sought to rely on health and safety grounds to objectively justify the mandatory retirement age, which had been applied consistently across the company. The Complainant had notice of the mandatory retirement age. The WRC again stressed the importance of considering mandatory retirement on an individual basis, and in O’Callaghan the employer had not carried out an individual assessment after receiving the Complainants request to continue working.

The EU cases of Age Concern England – Case C-388/07 and Palacios de la Villa C 411/05 - 2007 further highlight the need for a “high standard of proof” in regard to any “objective justifications” being advanced. Enforced retirement due to age is also inconsistent with the European Charter of Fundamental Rights; articles 15 and 21.

In the 2023 decision of Commissioner of An Garda Síochána and Minister for Justice, Equality and Law Reform v Roland Boyle (EDA234), the Labour Court held that the maximum age of 35 for recruitment to An Garda Síochána was unlawful. The Court stated:

“The Court determines as set out above that the maximum age of 35 for recruitment to An Garda Siochana as provided for in the 1998 Regulations as amended by the 2004 Regulations, does not constitute a genuine and occupational requirement as provided for in s 37 (2) of the Act, Article 4 (1) of the Directive. The Court further determines that the maximum age of 35 for recruitment to An Garda Siochana as provided for in the 1998 Regulations as amended by the 2004 Regulations, is not objectively justified as provided for in s 34(5) of the Act, Article 6(1) (c) of the Directive. The Court determines that the Complainant was discriminated against on the grounds of age.”

It is the Complainant’s position that the same can be said of the opposite end of the age-bracket; that refusing to continue employing someone due to their age is materially the same as refusing to employ them in the first place because of their age. As Lady Hale outlined in the UK Supreme Court case of Seldon v Clarkeson Wright and Jakes [2012] UKSC 16:

“Once an aim has been identified, it has still to be asked whether it is legitimate in the particular circumstances of the employment concerned. For example, improving the recruitment of young people, in order to achieve a balanced and diverse workforce, is in principle a legitimate aim. But if there is in fact no problem in recruiting the young and the problem is in retaining the older and more experienced workers then it may not be a legitimate aim for the business concerned. Avoiding the need for performance management may be a legitimate aim, but if in fact the business already has sophisticated performance management measures in place, it may not be legitimate to avoid them for only one section of the workforce.

In the Boyle case, the Court applied a four-limb test:

1.       is there a legitimate objective;

2.       is the characteristic at issue a genuine and determining occupational requirement;

3.       is the characteristic related to age; and

4.       is the requirement proportionate.

In the Complainant’s case, there was no legitimate objective, his age was not a genuine and determining occupational requirement, his age was the characteristic in question, and the requirement to retire him was not proportionate.

Failure to provide sufficient reasoning

The principle that public administration decisions must be capable of scrutiny for judicial review is essential to maintaining the separation of powers and the rule of law. The Supreme Court has emphasised that administrative bodies must operate within the limits set by the Oireachtas, and that their decisions must be based on clear statutory authority and reasoned explanations. This allows courts to determine whether a decision-maker has acted within their legal remit or has strayed into impermissible decision-making, which would be unconstitutional. This was addressed in Oates v Browne [2016] IESC 7 where Hardiman J. stated:

“It is a practical necessity that reasons be stated with sufficient clarity that if the losing party exercises his or her right to have the decision reviewed by the Superior Courts, those Courts have the material before them on which to conduct such a review. Secondly, and perhaps more fundamentally, it is an aspect of the requirement that justice must not only be done but be seen to be done that the reasons stated must satisfy the persons having recourse to the tribunal, that it has directed its mind adequately to the issue before it.”

This has been re-stated, almost verbatim, by the Supreme Court in Connolly v An Bord Pleanala [2018] ILRM 453, and more recently again in Naisiúnta Léictreach Contraitheoir Éireann Coideachta Faoi Theorainn Ráthaoichta (NECI) v The Labour Court, The Minister for Business, Enterprise and Innovation, Ireland and the Attorney General [2022] 3 IR 515.

In EMI Records (Ireland) v. Data Protection Commissioner [2014] 1 ILRM 225, Clarke J. (as he then was) for the Supreme Court concluded that a party was entitled to sufficient information to enable it to assess whether the decision was lawful and, if there be a right of appeal, to enable it to assess the chances of success, and to adequately present its case on the appeal. The reasons given must be sufficient to meet those ends.

The Complainant submits that the above case law and legislation clearly support his claim that he should not have been forced to retire where there was no operational basis or legitimate objective requiring him to retire or, in the alternative, none was communicated to him nor was the ‘general context of the measure’ readily apparent for the purposes of judicial review consideration and neither was there any right of appeal against the decision. The Complainant has cited numerous comparators who have all been permitted to remain in employment past retirement age and submits that requiring him to retire in isolation purely due to his age amounts to discrimination.

Discrimination – Burden of proof

Section 85A(1) of the 1998 Act as amended 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 the matter of Southern Health Board v Mitchell [2001] E.L.R. 201 the Labour Court set out the now well-established test in determining whether the probative burden shifts by application of subsection 85A(1). In particular, the Court held that:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a prima facie presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

It is also noted that in the Maurice Dunphy case (ADJ-00043647), a prima facie case was found to have been established in circumstances where the Complainant proved he was required to retire upon reaching a particular age. This was sufficient in the view of the Adjudicator to shift the burden to the Respondent. It is submitted this is instructive in the instant case.

In the matter of Melbury Developments Ltd v Valpeters EDA 09/17, the Labour Court commented that:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the 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.”

As stated above, the Complainant has named numerous colleagues who have either been permitted to remain past retirement or have been informed that they can remain, and who occupy similar positions of authority whereas he has not been so permitted and nor has any objective justification for this decision been provided from the Respondent despite a request for same being made under section 76 of the Employment Equality Acts. This amounts to credible evidence that he has been discriminated against in accordance with Valpeters, and therefore the burden of refuting the charge shifts to the Respondent accordingly.

Summary of the legal position

Whilst the objective to retire prison staff who are unfit for duty could be said to be legitimate and proportionate, it is neither legitimate nor proportionate to dismiss perfectly fit, healthy and highly experienced members of staff with incalculable levels of experience and knowledge on the grounds that their age somehow renders them suddenly incapable of fulfilling their roles, or on the basis of a 38 year old term of employment which has not been updated in line with current jurisprudence in any way.

There was no indication by the Respondent to the Complainant which suggested there was an ongoing and continued monitoring of prison staff fitness levels to establish which members of staff are or are not physically or mentally fit to do the job (beyond the recruitment process) and that he had fallen below this standard, that he was to be assigned to lighter duties on medical grounds or had a higher level of absence or injury as compared to his younger colleagues. The Complainant submits that in fact it is not at all unusual for members of staff over the retirement age to be retained - this suggests that it is an issue of the Complainant’s age specifically and not age generally.

In failing to apply these legal principles fairly and proportionately, the Respondent has caused genuine upset to a valued employee of over three decades experience and entirely undermined his dignity when they excluded him from the decision-making process and further failed to proffer any genuine reason for the refusal of his extension. This treatment amounts to less favourable treatment as envisioned under the equality legislation and entirely erodes his right to dignity and respect at work, right to fair procedures and natural justice with respect to the decision making and communication of same.

Further, in failing to provide the Complainant with written terms of employment when requested to do so within the statutory timeframe, the Respondent has acted in breach of section 6 of the Terms of Employment (Information) Act 1994.

Compensation

Discrimination & discriminatory dismissal

In accordance with the case of Von Colson & Kamann v Land Nordrhein - Westfalen [1984] ECR 1891, there is a requirement that sanctions be “effective, dissuasive and proportionate.” Per the WRC case of Dr Jacqueline Elliott v Flexiteam Ltd. ADJ-00045346, “The other factor that must be taken into account in deciding the quantum of an award is the embarrassing and distressful situation the Complainant was put in”.

The Complainant seeks compensation for the effects of the discrimination and the discriminatory dismissal which he suffered. Guidance on quantum in relation to awards of discrimination has been given by the Labour Court in the case of Lee t/a Peking House v Fox EED036, holding that the quantum awarded must compensate:

“[the] effects which flowed from the discrimination which occurred. This includes not only financial loss suffered by the Complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof.”

In the case of Aer Lingus Social Athletic Association (ALSAA) v Mary Gavin EDA2312, the Labour Court held:

“However, having considered the effects on the Complainant of the discriminatory dismissal and having taken account of what both she and her representative shared with the Court on the question of remedy, the Court determines that the preferred remedy of compensation at an appropriately significant level is warranted, having regard to s.82,(1) (c) of the Acts, which requires the Court to consider the ‘effects’ of the discrimination. The Court sets that amount at €30,000 and directs the Respondent to pay that amount to the Complainant.”

In the above-mentioned Dunphy case, despite offering mitigation of loss evidence which demonstrated rather limited attempts at securing other employment, the Commission awarded €25,000 in compensation to Mr Dunphy. Per the age discrimination case of Barbara Geraghty v The Office of the Revenue Commissioners ADJ-0000031, the Commission held:

“In accordance with Section 82(4) of the Acts, I order the Respondent to pay the Complainant €82,000 in compensation for breaches of the Employment Equality Acts. …. This award is arrived at having regard to the requirement pursuant to Article 17 of the Framework Directive as interpreted by case-law that the sanction be “effective, dissuasive and proportionate”.

In the O’Callaghan case, the WRC made an award of €20,000 for discriminatory dismissal on the grounds of age following the imposition of a mandatory retirement age.

In relation to the failure to provide written terms of employment, the Complainant seeks the full statutory amount available to the Adjudicator, that being 4 weeks’ pay.

Concluding remarks at the adjudication hearing

Ms Walsh BL asserted that the Respondent was trying to ride two horses. While it has a mandatory retirement age, it allows employees to stay post-retirement but not in an employee capacity.

Ms Walsh said that there was no assessment of the Complainant, his sick absence and injury days were never reviewed. Furthermore, there were no alternatives considered. Neither was there a medical, operational or performance assessment conducted. There was no data produced regarding any correlation between age and injuries suffered.

Ms Walsh said that Mallon case was different as in the instant case the Respondent says that the health and safety was at issue. Mallon did not say that an individual assessment is never required. It was asserted that Mallon does not allow to use age as a proxy for suspected, unarticulated or unspecified capability issues. Mallon expressly dealt with and made clear that no blanket scenarios apply.

The Respondent relies on capability without any assessment generally or specific to the Complainant. The Respondent has a selective, ad hoc, incoherent and inconsistent approach.

It was said that Mr Whelan gave evidence regarding his position and the Respondent cannot rely on people remaining under a different title.

Ms Walsh said that none of the witnesses was informed of the change to the mandatory retirement age. It was asserted that there was no plan and it was up to an employee to approach the Respondent regarding their retirement plans. As the Respondent said that there would not be many staff that would want to stay, it would not ne burdensome to assess them.

It was asserted that the mandatory retirement age was not objectively justified in this case.

Summary of direct evidence and cross-examination of Mr Michael Stenson, Assistant Principal, HR Pay & Pension Unit

Mr Stenson said that the Complainant’s application to remain working past 60 was escalated to him by a team member.

Mr Stenson said that he reviewed Circular 13/75. It allowed for limited extensions, but the Complainant did not appear to meet the criteria. His understanding was that unless something extraordinary and exceptional occurred, the mandatory retirement age applied.

Mr Stenson said that he assessed, consulted the Circular, and could not see any basis that would allow him to extend the Complainant’s employment. Mr Stenson said that one of the criteria was hardship, e.g. not meeting the maximum pension entitlements. It did not apply in the Complainant’s case.

Regarding the legal standing of the Circular, Mr Stenson said that the Circular was repealed.

Mr Stenson said that the mandatory retirement age does exactly what it says on the tin. He had no power and no discretion to extend it. Mr Stenson said that he was not aware of staff working past the mandatory retirement age. He said that sometimes staff could be taken back on short, different contractual arrangements but they would not be employees.

Mr Stenson said that there is a difference between an established position (superannuation) and unestablished (short contract, no superannuation). He said that Mr Whelan clearly retired and came back to an unestablished position.

Mr Stenson clarified the concept of “fast accrued” pension. He said that ordinarily, a civil servant requires 40 years’ service to avail of a full pension. In simple terms, Prison Officers who are civil servants require 30 years (20 years plus 10 years counted double). Mr Stenson said that his understanding was that this was due to the demanding nature of the job. Fast accrual is not available to, for example, clerical staff within the Respondent.

The Complainant reached the maximum pension available to him in 2017.

Mr Stenson said that there are some 100 retirements per year. Without the mandatory retirement age there would be resources issues and delays. It would be a huge undertaking and a challenge to make individual assessments.

In cross-examination, it was put to Mr Stenson that Governor Whelan got an extension. Mr Stenson clarified that Mr Whelan retired and came back in an unestablished capacity, he did not get extension. He said that he could not speak on the details of the operational aspect of Mr Whelan’s role after his retirement.

It was put to Mr Stenson that there is a small number of applications, they are very rare so it would not be burdensome. Mr Stenson disagreed. He said that there would be a requirement for a separate structure to deal with applications.

It was put to Mr Stanson that the 1975 Circular was outdated. Mr Stenson replied that the Respondent follows the law and applies whatever Circular is applicable at the time.

In redirect, Mr Stenson clarified that established positions are subject to the civil service superannuation scheme while unestablished positions have different terms and conditions regarding superannuation. 

Mr Stenson said that, as matters currently stand, staff may sometimes be inclined to apply for an extension. However, during his five years in the role, no such extensions were granted. He added that he could not say whether introducing individual assessments would lead to an increase in applications.

Summary of direct evidence and cross-examination of Ms Davina Bracken, Principal Officer HR

Ms Bracken said that the Complainant’s application was the first case of an application for extension that she dealt with, she had never granted an extension before.

Ms Bracken said that there is no appeal mechanism in the context of the mandatory retirement age. However, as a more senior officer she reviewed the application to ensure that Mr Stenson followed the process. Having reviewed the details, she concluded that Mr Stenson’s decision was correct, and the Complainant was required to retire. She said that hardship aspect of the retirement was considered in particular.

Ms Bracken said that the time she understood that the 1975 Circular was live. However, she was advised by DPER that it was repealed by 2018 legislation.  It would not have impacted on her decision.

Ms Bracken confirmed that, on the Complainant’s request, she furnished him with a copy of his contract of employment.

Regarding the number of occupational injuries on duty for years 2022 to 2024, Ms Bracken said that it was not a HR area but as a member of senior management team, she was familiar with the figures. In cross-examination, Ms Bracken said that she had no information whether there are statistics that are age profiled. 

In cross-examination, Ms Bracken confirmed that she was limited in what she could do.

Ms Bracken said that she was not aware of anyone being brought back after retirement on a long-term basis. She said that she was dealing with the pay and pension aspect and from her experience, nobody remained in employment after the mandatory retirement age.

It was put to Ms Bracken that the witnesses for the Complainant gave evidence that they were never notified of the mandatory retirement age. Ms Bracken said that an email regarding the change issued on 19 August 2024 from her section to all Governors. It was advising of the increase of the mandatory retirement age to 62 years of age and of the impact on fast accrual, i.e. fast accrual would cease at 60.

Ms Bracken clarified that the 2018 legalisation repealed the option of three months extension contained in the 1975 legislation.

Summary of direct evidence and cross-examination of Ms Róisín Friel, Assistant Principal, Department of Justice, Home Affairs and Migration

Ms Friel explained that uniformed services such as in An Garda Síochána, Defence Forces, retained firefighters, and Prison Service are treated in a similar manner in the context of retirement age.

Objective justification underpinning the mandatory retirement age of 60 include health and safety, workforce planning, and intergenerational fairness. Ms Friel said that the Department is responsible for its staff who often conduct dangerous work as compared to a typical civil servant. Furthermore, there is a requirement to ensure that younger people will have an opportunity to join, upskill, train and be promoted.

Ms Friel said that the mandatory retirement age can contribute to retaining staff at a certain fitness level. There is also psychological and personal dignity aspect. While experience is valued, she said that the staff need to have opportunities to move through the ranks.

Ms Friel said that having a mandatory retirement age in this instance is proportionate.

In cross-examination, Ms Friel said that she could not comment as to whether the Complainant’s staying in his role would “block” someone else.

It was put to Ms Friel that, if the mandatory retirement age was legitimate, why would it be increased to 62. Ms Friel replied that she could not comment on that, she was not part of the discussions in the Cabinet regarding the change. However, she said that recruitment and cost needed to be considered. Ms Friel confirmed that the mandatory retirement age increased across all the uniformed staff.

Summary of direct evidence and cross-examination of Ms Mary Leyden, Governor, HR Workforce Planning

Governor Leyden outlined her career. She said that she joined the Respondent in 1999 as a Prison Officer and moved up the ranks. In that context, she stated that in her experience, an ACO is a first line manager, but a Governor is on call at all times.

Governor Leyden said that the demanding nature of work in the prison environment was exacerbated as resources were removed as part of the Croke Park Agreement and then post-Covid-19 with the influx of prisoners.

Governor Leyden said that part of her role is to check resources, which is particularly important due to overcrowding, decreased resources, checks and balances and compliance requirements.

Governor Leyden said that the ACO’s role is demanding from a mental, physical and accountability perspective.

Governor Leyden said that Prison Officers undergo a 12-week programme in the Respondent’s college. After successful completion of the 12 weeks, they are placed in prisons and complete the Higher Certificate in Custodial Care (HCCC) on a blended basis.

Governor Leyden said that there is no correlation between age and years of service. She said the average age of staff in Limerick prison is 41 and the average service of 14 years, in Cloverhill prison it is 30 and 18 respectively, and in another prison 55 and 18. She said that recruits generally are placed in Dublin first and then are put on a transfer list.

Governor Leyden said that slips and trips happen frequently in the prison environment. She said that there were a number of Prison Officers who were seriously assaulted and she sought ways to reasonably accommodate them and bring them back to work, including to roles where there is no contact with prisoners.

Governor Leyden said that each Prison Officer must attend a CPD training every two years and from Chief Officer rank upwards additional training in leadership and management is required.

Governor Leyden said that Pay & Pension Section do not receive many queries regarding working past-retirement age. While 30 years’ service requirement is a luxury, in her opinion, people get burned out.

Governor Leyden said that if senior staff remain working, younger staff cannot move, even those on a transfer list. Staff would leave if there were no opportunities for them to move and get promoted.

Governor Leyden said that her team works with the Recruitment and Competition Section in HR in conjunction with the Prison Officers’ trade union. As part of budgeting, submissions are made regarding resources required. The “known knowns” are also looked at, such as who has to retire, what competitions have to be arranged as a result. Ultimately, prisons cannot be left with no staff.

What is not known is whether Prison Officers that have 30 years’ service but are under 62 would retire. The only known to inform planning is those who reached the age of 62 years. Governor Leyden said that it is disruptive when staff give the Respondent short notice, but it would be chaotic if the Respondent did not know at all who is planning to retire and when. The mandatory retirement age is the only certainty.

Regarding age balance, Governor Leyden said that if someone was interested in her job but had no clue when she must go, it would discourage staff form engaging in her area. It would be demotivating if staff have no opportunities because posts don’t become available.

Governor Leyden said that Mr Whelan was her Governor during her employment in the Portlaoise prison. She said that Mr Whelan’s retirement was controversial and he was reengaged in a different capacity following his retirement.

There was quite a lot of changes at that time around the implementation of the Croke Park Agreement. Governor Leyden said that positions of campus governors were introduced. Mr Whelan had the required expertise and that was why he got the job. The person who was appointed after him has never served as a Prison Officer.

Governor Leyden clarified that an Assistant Chief Prison Officer is a first line manager responsible for custody and care of prisoners, and the implementation of policies. It does not have the strategic role, budget, policy development and is not on call like the Governor.

Governor Leyden said that the Prison Officers’ Association was included in the email Ms Bracken referred to. The Association was quite vocal and opposed the increase of the mandatory retirement age.

In cross-examination, Governor Leyden said that while more mature staff could be more clued in, in some circumstances, assistance from more physically able staff would be required.

Governor Leyden was asked who would be blocked if the Complainant remained working longer. She said that when the Complainant retired, a person was promoted to replace him. There is a panel of staff who are waiting to be appointed once a position becomes available.

Governor Leyden agreed that the Complainant did not express any difficulty with his ability to do his job.

It was put to Governor Leyden that data does not show that there could be a health and safety issue in the context of more demanding role and increased age. Governor Leyden said that the frontliners are usually the staff last in.

Governor Leyden disagreed that the Complainant would be liable if something happened while he was acting up. She said that the Governor of the prison is responsible and liable. A person would be responsible as far as their role was concerned but the responsibility for the prison is with the Governor.

Governor Leyden said that she has never come across a Prison Officer who was not aware of the mandatory retirement age. Information was widely available on the intranet. An email was circulated, including to the Complainant’s trade union, and it was reported in the media and social media.

It was put to Governor Leyden that it would not be burdensome to send the Complainant for an occupational health assessment. Governor Leyden said that, as per Mr Stenson’s evidence, some 100 people retire every year. One would have to look at the impact of such a set up. In addition, the impact of the transfer list would need to be considered. It would also require new legislation.

Governor Leyden said that at some stage in 2014-2016 some Prison Officers were brought back as the Respondent was short staffed, but it did not work out.

It was put to Governor Leyden that, if the workforce planning was very important to the Respondent, why there is no formal channel to apply for an extension. Governor Leyden said that it would impact on recruitment.

Regarding the circumstances of Mr Whelan’s retirement, Governor Leyden accepted that it was publicised by the media. She said that she recalls that because at that time she worked with Mr Whelan. In reply to a query, if Mr Whelan’s appointment post-retirement blocked someone else, Governor Leyden said that she could not answer.

Governor Leyden disagreed that it made sense to keep someone post-retirement if they are capable. While she agreed that they may be an asset, she said there are rules regarding retirement.

In redirect, Governor Leyden confirmed that Mr Whelan had particular expertise that was required at that time.

Governor Leyden said that a certain number of staff is required to run each prison. Leave such as sick leave or maternity leave are addressed through staff working additional hours. Staff on these types of leave are not replaced through recruitment. The only known information the Respondent has are the retirements.

Written submission of the Respondent

INTRODUCTION

The complainant was an employee of the Irish Prison Service (“IPS”) as an Assistant Chief Officer in Limerick Prison.

By letter dated 18 November 1987, the Complainant was offered the position of Prison Officer. The said offer of employment stated, inter alia, as follows:

“I am directed by the Minister of Justice to state that, on the recommendation of the Civil Service Commissioners, he is prepared to appoint you as a prison officer in accordance with the terms of regulations and condition of service issued by the Civil Service Commissioners inviting applications for the posts of Prison Officers.

A copy of the conditions of service attached to this post are enclosed. You are advised to read these conditions very carefully.

If you are prepared to accept appointment in accordance with the regulations and conditions of service, please complete the attached form and return it to…the Department by Monday 23rd November 1987...”.

By form of acceptance dated 20 November 1987, the Complainant accepted the appointment as a Prison Officer “in accordance with the regulations and conditions of service”.

The conditions which applied to the of Prison Officer included the following:

“Retirement: Retirement is compulsory at 60 years of age but an officer may be required to retire at any time after 55.”

By letter dated 18 March 2023, the Complainant sought an extension of his service beyond his 60th birthday. By response dated 5 May 2023, the Respondent noted that there were no grounds to allow an extension of service.

By email dated 10 May 2023, the Complainant requested a copy of his contract and sought an appeal of the decision. The Complainant sent a follow up email on 31 May 2023 noting that this was his last day of service.

By letter dated 12 July 2023, the Respondent wrote to the Complainant stating that the previous decision was correct and enclosed a copy of the form of acceptance and terms and conditions.

On 15 August 2023, the Complainant referred a complaint to the Workplace Relations Commission alleging discrimination. In particular, the Complainant alleges that he was forced to retire from the IPS, that he has not reached the 40 years pensionable service cut off point and he is aware of at least three colleagues who are working in the prison beyond 60 years of age. The Complainant also alleges that he did not receive a statement in writing of the terms of his employment.

MANDATORY RETIREMENT AGE

The mandatory retirement age for Prison Officers to whom the Superannuation (Prison Officers) Act 1919 (“the 1919 Act”) applies is out in section 8(1) of the Civil Service Regulation Act 1956 (as amended by the Courts, Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Act 2024) (“the 1956 Act”), as follows:-

“In this section, ‘the retiring age’ means-

“(a) In relation to a civil servant who is an officer to whom the Act of 1919 applies, sixty years or, where a higher age is specified by regulations under subsection (1A), that age…

(1A) The Minister for Justice may, with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform, make regulations relating to the retirement of officers to whom the Act of 1919 applies, including specifying a retirement age of such officers, being an age that is higher than 60 years and not exceeding the normal retirement age (within the meaning of section 13(1) of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012)…

(3) Every civil servant shall retire on attaining the retirement age”. [Emphasis added]

The 1919 Act provides that it is, inter alia, “an Act to amend the Superannuation Acts in their application to officers employed in Prisons”.

Statutory Instrument 405/2024, Civil Service Regulation Act 1956 (Retirement of Prison Officers) Regulations 2024 (“the 2024 Regulations”) was enacted pursuant to s. 8(1A) of the 1956 Act. It provides that:

“An officer to whom the Act of 1919 applies shall retire on attaining the age of sixty two years.”

The Regulation came into operation on 19 August 2024, after the retirement of the Complainant.

As a result of the foregoing, the position in respect of the mandatory retirement age for prison officers can be summarised as follows:

·         Prior to 19 August 2024, the mandatory retirement age was 60 years of age.

·         Post 19 August 2024, the mandatory retirement age is 62 years of age.

The Complainant reached the mandatory retirement age of 60 on 1 June 2023.

Circular 13/1975 – Retention of Civil Servants beyond the age limit (“the 1975 Circular”) provided that an officer with a maximum retirement age may have been retained for no more than three calendar months beyond the retirement age in a pensionable capacity if such retention would increase the pension, lump sum or gratuity. The Circular also permitted the retention for other purposes in exceptional circumstances. The 1975 Circular is no longer operable following repeal by the Public Service Superannuation (Age of Retirement) Act 2018, as the underpinning provision contained in section 8(4) of the Civil Service Regulation Act, 1956 was deleted.

MINIMUM PENSION AGE AND PENSION ENTITLEMENTS

The Superannuation Handbook and Guidance Notes, Established Civil Service Scheme, dated December 2006, summarises the pension entitlements at the time of the retirement of the complainant as follows:

As outlined above, at the time of the retirement of the Complainant, the mandatory retirement age for Prison Officers was age 60. The minimum retirement age for Prison Officers is 55 except for Prison Officers with 30 years’ actual service who can retire with full pension entitlement from age 50.

Irish Prison Officers are part of a uniformed fast accrual public service pension scheme. The pension entitlements of Prison Officers accrue faster than standard public service pension entitlements. Pursuant to these enhanced superannuation terms, actual service in excess of 20 years is doubled for superannuation purposes, subject to a maximum of 40 years’ reckonable service - thus, for example, a Prison Officer with 30 years' actual service secures maximum pension benefits.

The Commission on Public Service Pensions (2000) details the rationale for the mandatory retirement age and pension arrangements for Prison Officers at paras. 3.3.62 and 15.5.3 as follows:

“3.3.62 Prison Officers are civil servants and so are covered by the Civil Service Pension Scheme. The Superannuation (Prison Officers) Act, 1919 made certain changes to pension terms to take account of the much higher standard of physical efficiency required of a Prison Officer all through service and the extra strain of working in a prison environment. These changes enabled Prison Officers to retire on or after age 55 (rather than age 60) with their service in excess of 20 years counting as double in the calculation of pension benefits (thus, maximum benefits are payable after 30 years’ actual service). The maximum retirement age is set at age 60. The terms were amended in 1983 to allow Prison Officers the option of retiring from age 50 with immediate pension provided they had 30 years’ actual service in the prison service…

15.5.3 The Superannuation (Prison Officers) Act, 1919 made a special change to the pension terms of Prison Officers — who are civil servants — to substitute age 55 for age 60 as the minimum age of retirement. It also provided for the doubling of service for years served in excess of 20. The 1919 change was made to take account of the demanding nature of employment in the prison service with its tensions and dangers and the obvious necessity to ensure physical and mental fitness and alertness for the proper discharge of prison duties. A further change was made in 1983 on foot of an arbitration decision to enable Prison Officers having at least 30 years’ service to retire at any age after age 50.” [Emphasis added]

The Superannuation Handbook and Guidance Notes set out the method of lump sum and pension calculation for prison officers as follows:

“11.5 Retirement Lump Sum Calculation:

Retirement lump sum is 3/80ths of pensionable remuneration (as defined in paragraph 5.1) [Footnote 1: Pursuant to para. 5.1: “Lump sum superannuation benefits (i.e. retirement lump sums and all gratuities) are calculated by reference to pensionable remuneration and reckonable service. Pensionable remuneration is the aggregate of pensionable salary and pensionable emoluments.”] for each year of reckonable service, subject to a maximum of 1½ times pensionable remuneration.

11.6 As indicated in Chapter 5, pensionable remuneration - and hence the amount of the retirement lump sum - is largely based on an officer's pay on the last day of service…

11.7 Pension Calculation for staff recruited before 6 April 1995: The method of calculation of pension for pre-6 April 95 staff (who pay the modified rate of PRSI) is 1/80th of pensionable remuneration per year of reckonable service, subject to a maximum of 40 years.”

The Complainant retired on 1 June 2023 with in excess of 30 years’ service and with an annual salary of €80,741.86. Upon retirement, the Complainant received a tax-free lump sum of €121,112.79 and an annual pension of €40,370.93. The complainant accrued the maximum annual pension entitlement permitted under the scheme.

EMPLOYMENT EQUALITY ACTS 1998 – 2021

The Complainant submits that he has been dismissed for a discriminatory reason. Council Directive 2000/78/EC of 27 November 2000 (“the Directive”), which establishes a general framework for equal treatment in employment and occupation, has been transposed into Irish law through the Employment Equality Acts 1998 – 2021 (“the Employment Equality Acts”).

Section 6 of the Employment Equality Acts provides that discrimination shall be taken to occur where:-

(a)    a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in sub-section (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…

(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’)”

Article 6 of the Directive entitled “Justification of differences of treatment on grounds of age” states that notwithstanding Article 2(2) (which provides what constitutes direct and indirect discrimination for the purpose of Article 2(1)):

“…Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.”

Recital 14 of the Directive provides as follows:-

“This Directive shall be without prejudice to national provisions laying down retirement ages”

Section 34(4) of the Employment Equality Acts transposes Article 6 of the Directive and provides for exceptions relating to, inter alia, the age ground:

“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—

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

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

Recital 25 affords a wide margin of appreciation to Member States and acknowledges that differences in treatment in connection with age may be justified in certain circumstances:

“The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.”

It is submitted that the compulsory retirement age provided for in the 1956 Act is objectively and reasonably justified by legitimate aims and is appropriate and necessary to achieve those aims.

WHETHER JUDGMENT OF COMPETENT AUTHORITY WAS UNREASONABLE

In Mallon v. Minister for Justice [2024] IESC 20 (“Mallon”) the Supreme Court (Collins J.) observed that the decision to adopt a mandatory retirement age is a matter for the relevant competent authority which is “better placed than the courts to assess what [is] necessary or appropriate for the effective operation of the coronial system”. Collins J. went onto to note at para. 104 that the courts have a limited role: they do not undertake a de novo assessment but are concerned only with whether the competent authority’s judgment appeared to be unreasonable.

In Farrell v. Mondelez Ireland Production Ltd ADJ-00046789 (19 August 2024) the Adjudication Officer, noted the Supreme Court judgment in Mallon, and stated that “the relevant employer was better placed to assess what is necessary and appropriate for the effective operation of the business”.

Accordingly, and as observed by the Adjudication Officer in Donnellan v. Eircom Limited ADJ-00051860 (1 October 2025), the Workplace Relations Commission is tasked with examining whether the judgment of the respondent was unreasonable.

OBJECTIVE JUSTIFICATION

In Donnellan v. Minister for Justice [2008] IEHC 467 the High Court (McKechnie J.) held that where multiple reasons are given for an early retirement age, it is enough if one or more amount to a legitimate aim. He noted that it was well established that “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) 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

The Court of Justice has emphasised the wide margin of appreciation afforded to Member States in the setting of retirement ages. In C-411/05 Palacios de la Villa v. Cortefiel Services SA a reference was made to the European Court of Justice whereby an employee was compulsorily retired at age 65, the age limit set by Spanish law for retirement. The ECJ ruled that the Framework Directive did not preclude national legislation allowing collective agreements to provide for mandatory retirement at age 65, provided the measure was:

“objectively and reasonably justified…by a legitimate aim relating to employment policy and the labour market, and the means put in place to achieve that aim of public interest do not appear to be inappropriate and unnecessary for the purpose”.

The ECJ held that the 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.

Similarly, in Doyle v. ESB International Ltd DEC-E2012-086 (27 June 2012) the Equality Officer upheld the objective justification for the aim of ensuring retention, motivation and dynamism among current employees. The equality officer stated:

“…I am satisfied that the respondent spends extensive resources and time in training its new employees. I am satisfied that in order to achieve this aim the respondent must ensure that it can offer career pathways to such employees and ensure vacancies for upward post becomes available. This is a necessity to ensure retention motivation and dynamism among the respondent staff. 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 an established 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 respondent’s main aim was to build and maintain electricity infrastructures both in Ireland and internationally. Electricity was of such nature that legitimate health and safety concerns may arise.

In C-250/09 and C-268/09 Georgiev v. Tehnicheski Universitet [2010] ECR I-11869, the Court of Justice held that the encouragement of recruitment undoubtedly constitutes a legitimate aim of Member States' social or employment policy, in particular when the promotion of access of young people to a profession is involved. The court further held that the mix of different generations of employees can contribute to the quality of the activities carried out, inter alia by promoting the exchange of experience, in this case among teaching staff and researchers.

The courts 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. In Irish Ferries v. McDermott EDA1631 (23 November 2016) the complainant, a dock worker argued, inter alia, that he was in good health and capable of discharging his duties. The employer had a retirement age which was universally applied to the category of staff whose work was physically demanding. The court found that the respondent had 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. 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.”

The retirement age had been 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. The court stated:

”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”.

The former Equality Tribunal considered a mandatory retirement age in the context of emergency services in Saunders v. CHC Ireland Ltd DEC-E2011-142 (19 July 2011). The complainant, a winch operator, was required to retire at the age of 55. The complainant’s contract of employment contained an express provision that he was required to retire at the age of 55. The objective justifications advanced by the respondent were as follows: (i) to protect the health and safety of the winchmen/winch operators, (ii) to protect the health and safety of the people who require rescue by the winchmen/winch operators; and (iii) to ensure the operational capacity and proper functioning of the professional search and rescue service. The Equality Officer was satisfied that these constituted legitimate aims for the purpose of Article 6.

In O’Donnell v. O’Keeffe EDA2133 (28 September 2021) the Labour Court recognised the safety critical nature of the complainant’s occupation as a construction plant fitter and upheld the objective justification advanced by the respondent in the following terms:

“The Court notes the undisputed evidence of the Respondent’s witnesses concerning the nature of the job, the fact that it is safety critical, the training period required to qualify service engineers, the investment required by the Respondent in terms of training apprentices to the standard they required.

Taking account of all of these issues, the Court is satisfied that a mandatory retirement age of 65 for service engineers in this employment is objectively and reasonably justified as it constitutes a legitimate aim. In this case the legitimate aim is to ensure a through flow of appropriately qualified service engineers and to ensure that employees are not required to continue working until they are unable to perform the duties.”

In Transdev Light Rail Ltd v. Chrzanowski EDA1632 (29 November 2016) the Labour Court accepted the employer’s argument that tram drivers were "safety critical workers", and that because of the nature of their work, it was very important that they be in a position to perform their roles safely, to ensure the protection of the health and safety of tram drivers, passengers and members of the public. It found that the imposition of an upper age limit for safety reasons was legitimate and proportionate.

The retirement age of members of An Garda Síochána has been considered in a number of cases. The case of Donnellan v. Minister for Justice [2008] IEHC 467 concerned the retirement age of senior Garda officers. Under the Garda Síochána (Retirement) Regulations 1996 (S.I. 16/1996), a member of the Garda Síochána appointed to the rank of Assistant Commissioner or Deputy Commissioner was required to retire at age 60. The plaintiff was an Assistant Commissioner and requested an extension but that was refused. The plaintiff challenged the 1996 Regulations on the basis, inter alia, that they were incompatible with the Directive. The High Court (McKechnie J.) accepted the aims to be legitimate including ensuring motivation and dynamism through increased prospect of promotion and the creation of the most useful pool of candidates possible for appointment to the position of Commissioner.

In McKenna v. Garda Commissioner (DEC-S2020-008) (15 October 2020) the relevant regulations set a mandatory retirement age of 60 years and empowered the Garda Commissioner to extend the member’s employment for a maximum of five years.

The complainant raised the increases of retirement age in the civil and public service and stated that the role of superintendent was comparable as the role was not a directly operational or confrontational one. The Adjudication Officer, however, was satisfied that the retirement age was objectively justified. The respondent had undertaken the review of retirement ages in 2007. The report concluded that extending the retirement age would create a hiatus in the succession process, which could lead to a loss of morale among members seeking positions in the officer ranks and this could cause them to leave the force because of limited career advancement. The Adjudication Officer stated that ensuring motivation and dynamism through the increased prospect of promotion was a legitimate aim. The mandatory retirement age was an appropriate and necessary means of achieving that aim in 2008 given the structure of the force set out in the 2007 review and the Commissioner’s power to extend an individual’s employment.

The current legal position on retirement age was set out in Mallon v. Minister for Justice [2024] IESC 20 where the Supreme Court considered the compatibility of a mandatory retirement age with the Directive. The court held that a mandatory retirement age does not constitute unlawful age discrimination where it pursues a legitimate aim and the means of achieving that aim is appropriate and proportionate, in accordance with Article 6(1) and relevant CJEU jurisprudence.

The court considered the mandatory retirement of a county sheriff. The Court Officers Act 1945 provided that the office of revenue sheriff is non-pensionable and that the age of retirement was 70. There was no provision for the extension or variation of that statutory retirement age.

A formal submission was made by the Sheriff’s Association, of which the plaintiff was a member, to the Minister of Justice to review the statutory retirement age. The application was refused on the basis that the Public Service Superannuation (Age of Retirement) Act 2018 introduced a mandatory retirement age which was consistently applied to all public servants.

Revenue sheriffs were not paid a salary but instead received annual retainers plus recovery fees from which they provided the necessary staff and discharge all relevant expenses. On his appointment, the plaintiff was entitled to remain in private practice as a solicitor and did so throughout his appointment and to his retirement at age 70.

The plaintiff challenged the lawfulness of the mandatory retirement age, which he contended was objectively discriminatory on the grounds of age and not justifiable. He also asserted that the mandatory retirement age for revenue sheriffs was unlawfully discriminatory when compared with the recently increased (from 70 to 72) mandatory retirement age for coroners.

The High Court (Phelan J.) held that the mandatory retirement age was “no doubt” discriminatory on age grounds but that the aims identified by the Minister fell within the broad discretion of the State and were legitimate policy aims within the Directive, namely (para. 85):

“to allow for planning at the level of the individual and at the level of the organisation, the creation of an age balance in the workforce, personal and professional dignity, intergenerational fairness, and standardising the retirement age in the public service”.

Phelan J. stated at para. 53 that “different treatment…will not constitute discrimination on age grounds where a test of objective and reasonable justification linked to a legitimate aim is identified and the means of achieving that aim is appropriate and necessary”.

On appeal to the Supreme Court, the plaintiff argued that a blanket mandatory retirement age was not justifiable where individual assessment was possible. The Supreme Court agreed with the High Court that the absence of flexibility on a “case by case or role by role basis” does not, on its own, render a measure disproportionate. Indeed, European Court of Justice jurisprudence recognised that Member States may reasonably adopt “generally applicable mandatory retirement rules”, without any requirement for individual capacity assessment.

The Supreme Court held that once the aims sought are legitimate and the measure is proportionate, a mandatory retirement age rule will not offend the prohibition on age discrimination.

The Supreme Court held that once the aims sought are legitimate and the measure is proportionate, a mandatory retirement age rule will not offend the prohibition on age discrimination.

·         Promoting the employment of younger people and facilitating their entry to the labour market; • Promoting the access of young people to the professions;

·         Establishing an age structure that balances younger and older workers;

·         Sharing employment between the generations;

·         Improving personnel management by enabling efficient planning for departure and recruitment of staff;

·         Preventing possible disputes concerning employees’ fitness to work beyond a certain age;

·         Avoiding employers having to dismiss employees on the ground that they are no longer capable of working which may be humiliating for the employee; and

·         Standardising retirement ages for professionals in the public service.

The court was satisfied that CJEU jurisprudence was clear that the avoidance of an individual assessment as to capacity to continue working after a retirement age in order achieve a legitimate aim was appropriate and necessary. Collins J. stated at para 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.”

In Farrell v Mondelez Ireland Production Ltd ADJ-00046789 (19 August 2024) there was a collective agreement in a food production company that set a retirement age of 65. Upon reaching that age, the complainant had been granted a one year, fixed-term contract; his employment was terminated when this expired. The Adjudicator rejected his complaint of age discrimination, relying heavily on Mallon. The respondent stated that their aim was to achieve a diverse and age balanced workforce. The uncontested evidence was that 64% of the work force was in the 49-65 age bracket and that 13% of the workforce were under 40 years of age. In addition, the complainant accepted that he was aware that a collective agreement and the employee handbook underpinned this collectively agreed retirement age.

The Adjudicator pointed out that the Supreme Court had rejected the need for individual assessment of capacity and that there was no evidence that the employer had not systematically applied the retirement age specified in the collective agreement.

In Reilly v. Meath County Council (ADJ-00050118) (4 July 2024) a retained firefighter was required to retire at the age of 60 on the basis of a government circular. The complainant maintained that he was fit to continue working, having previously passed medical assessments when he was 58 and 59. He argued that an occupational health assessment would have confirmed his capacity to continue in his role.

In rejecting his complaint, the Adjudicator relied heavily on the Supreme Court judgment in Mallon. The Adjudication Officer accepted that the Council had legitimate aims, including protecting public and firefighter safety, ensuring operational effectiveness, and enabling workforce and succession planning. It found that the retirement age of 60 was applied consistently and systematically. The Adjudication Officer also accepted that avoiding individual fitness assessments could itself be a legitimate aim, to prevent disputes and protect employee dignity.

In Quinn v. An Garda Síochána (ADJ-00044613) (27 February 2025) the Complainant alleged that she was discriminately dismissed on her 60th birthday on the ground of age when she was forced to retire at age 60. The Complainant held the position of Chief Superintendent as Head of the Garda Youth Diversion Bureau. Her successor, a civil servant at Principal Officer grade, was not obliged to retire until aged 70.

The Adjudication Officer queried whether the “having regard to the nature of work carried out by An Garda Síochána and the grading structure within this very large organisation; are the aims reasonable and the measures deployed proportionate so that they are achieved”. The Adjudication Officer concluded as follows:

“On balance having regard to the competency given to the authority to make those decision, the mandatory retirement age at 60 was based on a legitimate aim and that policy was reasonable…The fact that her last role was filled by a civilian who can retire at 70, does not create incoherence and inconsistency having regard to the powers, unique roles and challenges of An Garda Síochána when compared to an entirely different cohort being civil servants, where some overlap can exist. To civilianise a role does not undermine the legitimate aim of a mandatory retirement age.”

The Adjudication Officer acknowledged the difference in the retirement age in the case at hand and the Mallon case:

“In this case the retirement age was relatively young at age 60. This contrasts with Mallon where the mandatory retirement age was 70. However, the nature of the work is also challenging and demanding. The latitude given to a competent authority is wide and the role of a court or tribunal is to decide if the measure is unreasonable. That must be viewed having regard to the wider policy considerations and aims for that organisation and cannot be viewed partially or limited to one role.”

In Donnellan v. Eircom Limited ADJ-00051860 (1 October 2025) the complainant challenged the respondent’s enforcement of a mandatory retirement age of 65. The legitimate aims advanced by the respondent were based on intergenerational fairness, succession planning and health and safety. The retirement policy also referred to maintaining an age balance in the workforce. Reference was also made to the role of field technician being a “safety critical” role. The Adjudication Officer found the Respondent had acted reasonably in accordance with its retirement policy and the mandatory retirement age was objectively and reasonably justified by legitimate aims.

It is submitted that that the compulsory retirement age of 60 for Prison Officers pursues a number of legitimate aims which have been accepted by the domestic courts and the Court of Justice.

The Review of Barriers to Extended Participation in Public Service Workforce (2017) was completed by the Department of Public Expenditure and Reform as an assessment of statutory and operational issues that limited public servants from working up to the age of entitlement to the contributory state pension. The review excluded uniformed public servants from its findings on the basis that these were appropriate to the respective Minister with responsibility and that there were unique policies and operational issues with respect to these groups. At per page 3 entitled “Uniformed fast accrual group of public servants”, it is stated:

“There are certain groups of employees in the public service who, due to the nature of their work, are currently required to retire early (‘uniformed fast accruals’). Members of An Garda Siochána, the Permanent Defence Force, Firefighters and Prison Officers are the constituent groups in this category. Consideration was given to including these groups within the ambit of the review and this was discussed with their employers. It was decided, however, that the relevant employer was in a better position to consider the operational aspects of the employments concerned and to consider the appropriate compulsory retirement age for the employees in those groupings. Each employer provided a convincing objective justification as to why these groups of workers should be dealt with separately from the review. These groupings were, therefore, excluded from the ambit of the review.”

By Government Decision dated 5 December 2017, the Government decided to increase the compulsory retirement age for most public servants (those recruited before 1 April 2004) from age 65 to age 70 and to prepare legislation to give effect to that change. This decision excluded Prison Officers (and other uniformed groups where the relevant Minister has responsibility for setting the mandatory retirement age) from the retirement age proposals, which were subsequently implemented by the Public Service Superannuation (Age of Retirement) Act 2018 (“the 2018 Act”).

The justifications for excluding Prison Officers from these changes was provided by the Irish Prison Service to the Department of Public Expenditure by way of letter dated 28 November 2017, which outlined the justifications for the retention of the mandatory retirement age of 60, which can be categorised as follows:

Health and Safety and Personal and Professional Dignity

It is submitted that working in a custodial environment is inherently safety-critical and operationally demanding, engaging both public safety and the safety of staff and prisoners. There are a number of health and safety justifications underpinning the mandatory retirement age of 60 as follows:

·         Unlike other line Departments in the Civil Service, prisons are labour intensive organisations operating 24 hours a day, 365 days a year. Working in a prison is a challenging role which brings risk to the Prison Officer that would not be associated with most other professions or, indeed other civil servants. Prison Officers work in an environment in which, on a daily basis, they face unique circumstances - the threat of violence, dealing with deaths and incidents of self-harm by prisoners, witnessing assaults on both colleagues and other prisoners.

·         There is a wide body of research among academics and researchers working in the criminal justice field which shows the psychological impact all of this has on prison staff over a 30-year career working in prisons. This research indicates that Prison Officers suffer from high levels of stress, partly due to the environment in which they work and partly due to role conflict (i.e. officers reconciling their seemingly divergent roles of custody and care).

·         Many commentators have referenced prison as having a dehumanising effect of those incarcerated there. However, there is also now a view that prison may, and does have a dehumanising effect on those who spend their working lives as Prison Officers.

·         Prison Officers must undergo regular mandatory Control and Restraint (C&R) training which requires higher than normal levels of fitness and alertness which is less likely to be found the older one gets.

The following figures highlight the number of occupational injuries on duty for years 2022 to 2024:

* The increase in occupational injuries on duty in 2023 and 2024 was due to a backlog in processing.

The volume of referrals to the Chief Medical Officer * for the years 2022 to 2025 was as follows:

* This information is specific to the attendance management team only. Note, other business units can submit referrals to the CMO.

Finally, ill-health retirement for the preceding three years can be detailed as follows:

Prison Officers must remain physically capable, mentally alert, and operationally responsive throughout their service to ensure their own safety, the safety of colleagues, the safety of prisoners and the security and orderly functioning of custodial institutions; however, as age related changes naturally impact physical resilience and recovery, a mandatory retirement age of 60 supports the maintenance of consistent frontline capability.

The role of Prison Officer is inherently safety critical. The foregoing justifications are also relevant to the preservation of personal and professional dignity. The imposition of a mandatory retirement age of 60 recognises the dignity and respect owed to all employees, while avoiding disputes about capacity and underperformance.

Intergenerational fairness, creation of an age balance in the workforce, motivation and dynamism through the increased prospect of promotion

The mandatory retirement age of 60 for Prison Officers is an important part of a wider career development strategy and workforce planning. The number of promotional outlets in senior ranks remains small relative to the number of members in the less senior ranks. This means that the number of senior promotion opportunities are limited. A lower mandatory retirement age acts to ensure a regular, even if relatively small, turnover of senior staff, with consequent opportunities for younger members in the less senior ranks. This allows for the regular rejuvenation of senior management with new talent, and for the motivation of ambitious members in the less senior ranks who see a prospect of future promotion.

Workforce Planning

The Department of Public Expenditure Infrastructure Public Service Reform and Digitalisation provide publicly available information on sick leave at the following link: https://www.gov.ie/en/department-of-public-expenditure-infrastructure-public-service reform-and-digitalisation/collections/public-service-sick-leave-statistics/. From the information, it appears that the IPS have some of the highest levels of sick leave in the civil and public service. The level of sick leave can be detailed as follows

Current estimated sick leave figures for January - December 2024 are provided below:

Retaining Prison Officers in the IPS workforce beyond the existing retirement age would potentially increase the risk of additional sick leave and associated costs e.g. sick pay and annualised hours to provide cover.

It is submitted that all of the foregoing reasons are legitimate aims within the context of the EU and domestic case law in relation to compulsory retirement ages. It is further submitted that compulsory retirement age of 60 is appropriate and necessary to achieve the aims pursued.

PROPORTIONALITY

The Supreme Court in Mallon noted that there are a number of items that fall for consideration under the proportionality analysis.

Consistent and Systemic Application

The Supreme Court held that the consistent and systematic and coherent application of mandatory retirement rules is an important element of the proportionality analysis under the Directive. Such consistency is not undermined where an employee is retained in exceptional circumstances.

In Mallon, an ad hoc and one-off exception to the requirement for retirement at age 70 was made by section 6(2) of the Court Officers Act 1951, which provided that the age of retirement of the then serving sheriff in Dublin City should be seventy-two years. Collins J. observed:

“In my view, it cannot plausibly be suggested that the ad hoc and one-off exception to Section 12(6)(b) made by section 6(2) of the Court Officers Act 1951 (which provided that the age of retirement of the then serving sheriff in Dublin City should be 72 rather than 70) affects the coherence of the current mandatory regime, either generally or in its specific application to sheriffs.”

Similariy, in Doolin v. Eir Business Eircom Limited (ADJ-00045261) the Adjudication Officer found that the retention of three employees in exceptional circumstances did not in and of itself under the retirement policy:

“I noted however that the policy was not applied universally and that three employees were retained by the Respondent after they turned 65. Specifically, Mr Mangan gave evidence of one employee who was working on a specific and crucial element of an IT project that was being outsourced and given his critical role in the project, was allowed to work for 1 year after he turned 65. Additionally, he stated that two other employees, engaged on a Feet on the Street campaign, were allowed to work beyond 65 because there had been issues around the notification of their retirement dates and confusion after a transfer of their employment to the Respondent via a transfer of undertaking. Based on Mr Mangan’s evidence, I find that the decision to retain these employees was exceptional and does not in and of itself undermine the Respondent’s policy that all employees should retire at 65.”

The Complainant alleges that the named individual was a Governor who was granted a two-year extension to work past retirement age. The named individual retired from the Irish Prison Service and was thereafter re-employed on different terms and conditions in an unestablished capacity. Specifically, the employee retired from the Civil Service in February 2012, and his pension and lump sum were calculated and paid accordingly (with his pension abated during the period he returned to work in the public service).

After retiring, he was appointed for a fixed term to a temporary unestablished Civil Service post establishing campus-wide governance and shared service structures across the Mountjoy Campus. Based on the role and circumstances, the named individual is not an appropriate comparator.

It is submitted that the three other individuals named are not appropriate comparators. As detailed above, the mandatory retirement age increased to 62, effective as of 19 August 2024. This amendment post-dated the retirement of the complainant in 2023. The three named individuals have not yet retired and will retire in due course with a mandatory retirement age of 62 in accordance with the 2024 Regulations.

In Transdev Light Rail Ltd v. Chrzanowski EDA1632 (29 November 2016) the compulsory retirement age for tram drivers was 65. The complainant cited CIE employees as comparators for the purposes of his claim. Statutory Instrument 63/2016 Córas Iompair Éireann Pension Scheme for Regular Wages Staff (Amendment) Scheme (Confirmation) Order 2016 extended the retirement age for CIE employees from 65 to 66. The Labour Court rejected the argument that CIE employees were appropriate comparators:

“In the first instance the Court notes that this amendment took effect from 1 April 2016, whereas the claim before the Court relates to an alleged discriminatory act which took take on 3rd October 2014, therefore cannot be taken into consideration by the Court…

Therefore, the Court cannot accept the proposition that CIE is an appropriate comparator.”

Similarly, in Quinn v. An Garda Síochána ADJ-00044613 (27 February 2025) the Adjudication Officer noted that the mandatory retirement age for An Garda Síochána had increased to 62 and was aimed at supporting Garda recruitment and retention. The Adjudication Officer observed:

“I note that the mandatory retirement age for An Garda Síochána has increased to age 62 as provided for by the Courts, Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Act 2024, and is aimed at supporting Garda recruitment and retention. That change again does not undermine the previous policy as it was based on the circumstances at time and cannot be judged based on emerging challenges and workforce policy revisions.”

The Adjudication Officer further noted that “age in time may change for a legitimate policy reason and that change does not negate the policy previously applied in so far as the policy is proportionate.”

The retirement age for Prison Officers was increased to 62 on 19 August 2024. The within complaint was made to the Workplace Relations Commission on 15 August 2023. As such, and as submitted above, the three individuals named the Complainant are not appropriate comparators.

Financial Hardship

In Mallon, the Supreme Court noted that in assessing whether a mandatory retirement age was appropriate and necessary, significant reliance could be placed on whether any financial hardship would arise and this would go to an analysis of the proportionality of the mandatory retirement age. At para. 62(10), Collins J. stated:-

“A significant factor in assessing whether a mandatory retirement rule is ‘appropriate and necessary’ will be the financial impact on the persons involved and whether it will result in undue hardship to them. In that context, whether they will, on retirement, be entitled to an adequate pension is an important consideration.”

In Donnellan v. Minister for Justice [2008] IEHC 467 the High Court (McKechnie J.) noted that the plaintiff, a former member of An Garda Síochána, had the benefit of a generous pension and lump sum upon retirement. McKechnie J. stated at para. 123:

“…I know of no other employment position where this is possible, a member can retire after 30 years of service with a full pension at age 50. Thus, in addition to the financial package, which in this case is significant…a member's age of retirement is such that the prospect of a second career is very much open.”

In Donnellan v. Eircom Limited (ADJ-00051860) (1 October 2025) the complainant relied on the financial impact of retirement on his personal situation. The respondent submitted that the complainant was in receipt of a defined benefit pension and that he had worked beyond the necessary 40 years of pensionable service. This provided the complainant with an annual pension amounting to 46.8% of his final salary, together with a tax-free lump sum. The complainant gave evidence that he had not sought alternative work with the contracting company or elsewhere since his retirement. The Adjudication Officer stated:

“The Complainant had an exemplary career. He had a contractual entitlement to a defined benefit pension and therefore had the opportunity to adequately plan for his retirement with security and certainty. While it is entirely understandable that the ongoing costs associated with supporting his family are substantial, I find that, in the circumstances, the Respondent’s mandatory retirement age of 65 years was appropriate and necessary in light of the pension provision.”

In the within complaint form, the Complainant states that he has “not reached the 40 years pensionable service cut off point”. In fact, as detailed above, the Complainant accrued the maximum pension entitlement permitted under the scheme. In addition, the Complainant pursued other employment since his retirement and states in his submissions that he worked part time at a church and has also undertaken casual work as an executive driver.

Individual Assessment

The Complainant relies on the decision of the Workplace Relations Commission in O’Callaghan v. Ferrero Ireland Ltd ADJ-00043459 (10 November 2023) and states that the Workplace Relations Commission stressed the importance of considering mandatory retirement on an individual basis. The decision in O’Callaghan v. Ferrero Ireland Ltd pre-dates the judgment of the Supreme Court in Mallon.

In Mallon, the Supreme Court held that the absence of individual assessment does not result in a measure being disproportionate. The Supreme Court, departing from the High Court judgment, found that the avoidance of an individual capacity assessment has been recognised as a legitimate aim in favour of justifying a general retirement age. As per Collins J. at para. 76:

“I therefore agree with the Judge that 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.”

The court observed that individual assessments can give rise to disputes. As such, there is no requirement to carry out an individual assessment concerning the capacity and ability of an employee to continue in service.

FAILURE TO PROVIDE SUFFICIENT REASONING

The Complainant submits that there was a failure by the Respondent to provide sufficient reasoning. In Mallon, the Supreme Court confirmed that there is no requirement to justify the application of a retirement rule to an individual employee. Collins J. stated at para. 76:

“…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.”

In Farrell v. Mondelez Ireland Production Limited ADJ-00046789 (19 August 2024) the Adjudication Officer, in reliance on the judgment in Mallon, rejected the argument of the complainant that the absence of detailed reasoning as to why his employment was terminated was contrary to section 34(4) of the Employment Equality Acts. The Adjudication Officer quoted Mallon as follows:

“It is not the case that the Directive presumptively requires case by case or role by role assessment or that such individual assessment must be shown to be impractical if a generally applicable retirement age is to be justified. Provided that the aim sought is legitimate and the means of achieving that aim are ‘appropriate and necessary’ (proportionate), a mandatory retirement rule does not offend the prohibition on age discrimination in the Directive, notwithstanding that it does not entail an individual assessment of those subject to that rule.”

In addition, in Mallon, the Supreme Court stated that the legitimate aim can be derived or inferred from the general context of the measure and does not have to specified in a statute or collective agreement. Collins J. outlined at para. 62(3):

“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…”.

Similarly, in joined cases C-159/10 and C 160/10 Fuchs and Kohler v. Land Hessesn [2011] ECR 1-06919 the CJEU confirmed at para. 39 that the aim pursued does not need to be specified in the legislation:

“The Court has repeatedly held that it cannot be inferred from Article 6(1) of Directive 2000/78 that the lack of precision in the legislation at issue as regards the aim pursued automatically excludes the possibility that it may be justified under that provision. In the absence of such precision, it is important that other elements, taken from the general context of the measure concerned, enable the underlying aim of that measure to be identified for the purposes of review by the courts of whether it is legitimate and whether the means put in place to achieve it are appropriate and necessary”.

In Bord na Mona Plc v. Kenny EDA2232 (2 December 2022) the Labour Court relied on the foregoing in support of the proposition that “it is not necessary for a measure to expressly cite in order to objectively justify a legitimate aim”.

GENUINE OCCUPATIONAL REQUIREMENT

It is submitted that the mandatory retirement age of 60 years constitutes a genuine and occupational requirement within the meaning of Article 4(1) of the Directive and section 37 of the Employment Equality Acts. Article 4(1) provides that there may be a difference in treatment where there is a genuine and determining occupational requirement in respect of an activity. This will not constitute discrimination where the objective is legitimate and the requirement is proportionate:

“Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.”

Similarly, Recital 23 outlines that differences in treatment may be permitted:

“In very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate. Such circumstances should be included in the information provided by the Member States to the Commission.”

Recital 18 of the Directive make specific reference to the police, prison and emergency services:

“This Directive does not require, in particular, the armed forces and the police, prison or emergency services to recruit or maintain in employment persons who do not have the required capacity to carry out the range of functions that they may be called upon to perform with regard to the legitimate objective of preserving the operational capacity of those services.”

Section 37 of the Employment Equality Acts transposes Article 4 of the Directive and provides for exclusion of discrimination on particular grounds in certain employments:

“(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) the characteristic constitutes a genuine and determining occupational requirement, and the objective is legitimate and the requirement proportionate 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.”

In C-229/08 Wolf v. Stadt Frankfurt am Main [2010] E.C.R. I-1 the Court of Justice considered the validity of maximum recruitment ages. The maximum recruitment age was 30 for a post in the Frankfurt fire service. The court, in concluding that physical fitness was a genuine occupational requirement and that the adoption of a maximum recruitment age of 30 was proportionate, accepted scientific data that respiratory capacity, musculature and endurance diminish with age. The court held "that the possession of especially high physical capabilities may be regarded as a genuine and determining occupational requirement within the meaning of Article 4(1) of the Directive for carrying on the occupation of a person in the fire service."

The CJEU set out the following test for determining whether a difference based on age is justified as an occupational requirement under Article 4(1) of the Directive:

(i)                  the objective pursued must be a legitimate aim

(ii)                the characteristic required must constitute a genuine and determining occupational requirement for the occupation activities in question

(iii)               the characteristic must be age related

(iv)               the requirement must be proportionate

The aim sought to be pursued in Wolf was to guarantee the operational capacity and proper functioning of the fire service. The CJEU accepted this was legitimate in terms of Article 4(1).

The CJEU held what must be examined under the fourth limb of the test, proportionality, is “whether that limit is appropriate for achieving the objective pursued and does not go beyond what is necessary to achieve it”. The CJEU was satisfied that the national legislation at issue in Wolf setting the maximum recruitment age of 30 years was proportionate commenting as follows:

“To ensure the efficient functioning of the intermediate career in the fire service, it may be considered necessary for the majority of officials in that career to be able to perform physically demanding tasks, an hence for them to be younger than 45 or 50. Moreover the assignment of older than 45 or 50 to duties which are less physically demanding requires them to be replaced by younger officials….. Recruitment at an older age would have the consequence that too large a number of would not be assigned to the most physically demanding duties.”

In Saunders v. CHC Ireland Ltd DEC-E2011-142 (19 July 2011) 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. The respondent submitted that such employees were required to rescue people in highly dangerous and physically demanding situations and drew an analogy with personnel in the fire service who are called on to perform similar tasks. The Equality Officer was further satisfied that the services provided by the respondent fell within the scope of the State’s emergency services and that the respondent could also rely on section 37(3) of the Employment Equality Acts.

In Case C-258/15 Sorondo v. Academia Vasca de Policia y Emergencias the measure at issue was the upper age limit of thirty-five years for recruitment to the Autonomous Community of the Basque Region. In considering whether the recruitment age was justified in terms of Article 4(1), the court once held that “it is not the ground on which the difference in treatment is based but a characteristic related to that ground which must constitute a genuine and determining occupational requirement”. At paragraphs 34-35, the court decided that:

“The possession of particular physical capacities is one characteristic relating to age and the duties relating to protection of people and property, the arrest and guarding of offenders and preventive patrolling may require the use of physical force…It follows that the possession of particular physical capacities in order to be able to perform the three essential duties of the police of the Autonomous Community of the Basque Country described in Article 26(1) of Law 4/1992, namely ensuring the protection of people and property, ensuring that each individual can freely exercise his or her rights and freedoms, and ensuring the safety of citizens, may be considered to be a genuine and determining occupational requirement, within the meaning of Article 4(1)”.

It is submitted that the legitimate aim in the instant case is the preservation of the operational capacity and proper functioning of the IPS.

The CJEU accepted that the nature of the duties in Wolf, namely fighting fires and rescuing individuals, involved high levels of physical activity, and held that the “possession of especially high physical capacities may be regarded as a genuine and determining occupational requirement”. It is submitted that the role of Prison Officer similarly involves safety-critical operational duties which, by reason of the custodial environment and the nature of the risks that arise, require officers to retain the capacity to respond physically and psychologically under pressure, including intervening at short notice to restore control and protect others. The IPS must maintain a cohort of officers who are fully competent, available and capable of undertaking the range of functions they may be called upon to perform, so that operational capacity is preserved.

The Respondent submits that, as recognised in Wolf, the operational requirement to possess full physical capacity is capable of being treated as “related to age” because medically proven ageing processes affect respiratory capacity, musculature and endurance. The characteristic of possession of a high level of physical capacity is a characteristic related to age given the physically demanding tasks which an officer of Irish Prison Service must undertake whilst on duty the findings of the CJEU apply to the instant case, as accepted in Saunders.

In Sorondo, the Court held that “police work is both physiologically and psychologically demanding which over time leads to a deterioration of adaptation mechanisms and an increase in chronic diseases that cause the functional age to be higher than in other professions” and that “from the age of 40 years there is an age associated decrease in resilience to stress and a subsequent inability to perform another task for a variable period of time.”

Turning to proportionality, it is submitted that the mandatory retirement age of 60 is appropriate to the objective of preserving the operational capacity and proper functioning of the IPS. In that context, the retirement age is appropriate because it supports the maintenance of a workforce that can be deployed across the full range of operational duties, including the most physically demanding tasks, and it provides the IPS with the necessary staffing flexibility to respond to the ever-changing demands of custodial operations.

It is further submitted that the mandatory retirement age does not go beyond what is necessary. The prison environment requires the IPS to be in a position at all times to deploy officers who can meet sudden and unpredictable operational demands, including rapid escalation and emergency response.

The Respondent submits that the statutory retirement age must be assessed at the level of preserving the operational capacity of the service, and on the basis of the range of functions officers may be called upon to perform in the prison environment.

CONTRACT OF EMPLOYMENT

The Complainant submits that the Respondent failed or refused to provide a written statement of his employment within the two-month statutory timeframe.

By email dated 10 May 2023, the Complainant requested:

“A copy of the contract you mentioned that I signed over 36 years ago as I have no memory of same.”

The Complainant’s contract of employment was furnished by letter dated 12 July 2023.

Section 6(1) of the Terms of Employment (Information) Act 1994 (‘the 1994 Act”) specifically refers to a “statement containing the particulars specified in subsections (1) and (1A) of section 3”. Section 6(2) of the 1994 Act refers to “a written statement”.

In A Worker v. Statutory Educational Service Provider ADJ-00010310 (30 April 2020) the Adjudication Officer drew a distinction between a request pursuant to section 6 of the 1994 Act and a request by an employee for a copy of their contract of employment:

“The Complainant did not request a statement under section 3 of the 1994 Act, and accordingly there was no requirement for the Respondent to provide one. The Complainant's Solicitor did request a copy of the Complainant's contract, by which time, he had already been issued the 2010 Contract… I have considered all of the submissions made by the parties and find that as the claimant - having been appointed prior to 1994 - did not request a statement under Section 6 of the Act the respondent has met their obligations under the Act and accordingly I find against the claimant.”

The fact that there is distinction between a request for an employee’s contract of employment and a request for a written statement of employment as referred to in section 6 is reinforced by the precedents as contained on the website of the Workplace Relations Commission. The WRC document entitled “Sample Statements of Employment” provides a specific template to be used in the case of a statement issued pursuant to sections 3(1) and 3(1A). This establishes that a request pursuant to section 6 (for particulars in accordance with sections 3(1) and 3(1A)) is materially different to a request by an employee to be furnished with a copy of their contract of employment.

Accordingly, the Respondent has not acted in breach of the 1994 Act as there was no request by the Complainant pursuant to section 6 of the Act.

CONCLUSION

It is submitted that the Complainant’s contractual retirement age was at 60, as provided for under both his employment contract and the 1956 Act. It is further submitted that the Respondent acted in compliance with the Employment Equality Acts. The mandatory retirement age pursued legitimate aims, and the application of that retirement age was objectively and reasonably justified. The means adopted to achieve those aims were appropriate and necessary.

In those circumstances, the Respondent submits that the mandatory retirement age for Prison Officers is justified under Articles 4 and 6 of the Framework Directive and the Employment Equality Acts and as such, the Respondent submits that the circumstances leading to the Complainants retirement were justified, fair and reasonable.

Concluding remarks at the adjudication hearing

Ms Carney BL stated that the email regarding the increase of the mandatory retirement age was circulated to all staff. She said that because of the nature of the role, the legislation provides for fast accrual of pension entitlements for uniformed staff.

Ms Carney asserted that Mallon provides that the standard must be unreasonable. However, if it is found that one of the objective justifications advanced is valid, it would be sufficient to make the Respondent’s case.

Ms Carney said that on Mr Whelan’s evidence, he was employed in a different capacity post-retirement. Mallon held that one ad hoc exception does not undermine the mandatory retirement age. Furthermore, Mallon considered proportionality, hardship and an individual assessment.

Mr Carney said that the Respondent applied the mandatory retirement age consistently and the Complainant did not suffer any financial hardship.

The Complainant alleges that he was discriminated against on the grounds of his age when compulsorily retired on reaching a statutorily determined age. The Complainant’s case is that he was treated less favourably on the grounds of age than his named comparators who were permitted to remain working after they reached the age of 60 years old.

The Respondent rejects the claim.

The relevant law

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (the “Directive”) is transposed into Irish law by the Employment Equality Acts 1998, as amended (the “EEA”).

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

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

Discrimination for the purposes of this Act

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

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

(i)      exists,

(ii)    existed but no longer exists,

(iii)   m ay exist in the future, or

(iv)   is imputed to the person concerned,

…

(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:

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

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

Section 34(4) of the EEA transposes article 6 of the Directive and provides for exceptions relating to, inter alia, the age ground:

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 37 of the Act provides for exclusion of discrimination on particular grounds in certain employments:

“(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.”

The burden of proof

Section 85 A (1) of the EEA states:

Where in any proceedings facts are established by or on behalf of a claimant 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.  

This means that the Complainant is required to establish, in the first instance, primary facts upon which the claim of discrimination is grounded and from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.  

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.

The inference of discrimination must have a factual and credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.  

In Margetts v Graham Anthony & Company Limited EDA038 the evidential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:

The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place. The appellant must, on the balance of probabilities, prove those facts from which such an inference may be drawn. When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show on the balance of probabilities that it did not discriminate against the appellant. The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.

The Labour Court elaborated on the interpretation of section 85A (1) in Melbury v Valpeters (EDA 0917) where it stated that this section:

"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".  

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 Acts permits an employer to fix different retirement ages provided that the employer can show that it is objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. 

Code of Practice on Longer Working:

The Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (S.I. No. 600/2017) outlines best practice in industrial relations for managing engagement between employers and employees approaching a mandatory retirement age. It also lists a range of legitimate aims that may justify the setting of a mandatory retirement age:

·         Intergenerational fairness (allowing younger workers to progress);

·         Motivation and dynamism through the increased prospect of promotion;

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

·         Creation of a balanced age structure in the workforce;

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

·         Succession planning.

Retirement and fixed-term contract guidelines:

The IHREC Retirement and Fixed-Term Contracts Guidelines dated April 2018 “provide guidance […] in relation to the interpretation and application of section 6(3)(c) of [the EEA]”. The Guidelines note that they should be read in conjunction with any relevant statutory code of practice as may be enforced from time to time, including the Code of Practice on Longer Working (above).

The Guidelines identify the following matters as legitimate aims which are capable of objectively justifying differences of treatment on the grounds of age:

·         preserving the operational capacity of the armed forces, police, prison or emergency services;

·         promoting the vocational integration of unemployed older workers;

·         encouraging recruitment;

·         sharing employment between the generations;

·         establishing a balanced age structure within a particular employment;

·         workforce planning;

·         avoiding disputes concerning employees’ fitness to work;

·         the protection of health and safety;

·         promoting the access of young people to professions;

·         ensuring the best possible allocation of positions between the generations within a given profession.

Case Law

The current legal position on retirement age was set out in Seamus Mallon v. The Minister for Justice, Ireland, and the Attorney General [2024] IESC 20 where the Supreme Court considered the compatibility of a mandatory retirement age with the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (the “Directive”) as well as the case law of the Court of Justice of the European Union (the “CJEU”).

Mr Mallon was a solicitor in private practice who also held the position of County Sheriff, for which he was paid an annual retainer and certain fees. Section 12 of the Court Officers Act 1945 provides for the appointment of sheriffs, including sheriffs (commonly referred to as Revenue sheriffs) whose responsibility is the collection of Revenue debts. Under section 12(6)(b), the age of retirement of sheriffs is set at 70 years. Mr Mallon was appointed as a Revenue sheriff in January 1987.

In upholding the judgment of the High Court, the Supreme Court held that, under the Directive, a mandatory retirement age amounted to a direct imposition of less favourable treatment on workers of the prescribed age as compared with other persons in the workforce. This constitutes discrimination under Article 2 of the Directive and must be justified by reference to a legitimate aim under Article 6(1) ([62(1)-(4)]).

At paragraph 62(5), the Supreme Court noted that legitimate aims can include:

·         Promoting the employment of younger people and facilitating their entry to the labour market;

·         Promoting the access of young people to the professions;

·         Establishing an age structure that balances younger and older workers;

·         Sharing employment between the generations;

·         Improving personnel management by enabling efficient planning for departure and recruitment of staff;

·         Preventing possible disputes concerning employees’ fitness to work beyond a certain age;

·         Avoiding employers having to dismiss employees on the ground that they are no longer capable of working which may be humiliating for the employee; and

·         Standardising retirement ages for professionals in the public service.

Collins J held that the general application of the objectives across the public service did not undermine their legitimacy.

Collins J observed that Member States have a “broad discretion” in choosing which social and employment policy objectives to pursue and in defining the measures they choose to realise those aims [62(5) (8)]. Member States have a choice to either prolong people’s working life or, conversely,  to provide for early retirement so long as the measures not going beyond what was necessary and appropriate to achieve the aim being pursued, the choices are not unreasonable, and the discretion does not have the effect of frustrating the prohibition on discrimination on grounds of age.

It was held that the Directive does not require that Member States adopting a mandatory retirement regime apply the same age uniformly across the public service. Rather, Member States may provide for the application of a different retirement age to a specific category of public servants where there is a rational and objective basis for doing so and that one of the considerations that the State may take into account in that context is the need to maintain the effective delivery of public services in that area.

The decision to raise the mandatory retirement age for coroners, and to maintain the existing retirement age for sheriffs, was a decision for the Government and the Oireachtas. Those organs were better placed than the courts to assess what would be necessary and appropriate to ensure the effective operation of those offices. The court is limited to asking whether the decision of the authorities is an unreasonable one. The decision to apply and maintain a retirement age of 70 for sheriffs did not appear unreasonable in all the circumstances ([103]-[105]).

A particular point of focus was Mr Mallon’s contention that a blanket mandatory retirement age will not be justifiable where individual assessment is possible. The Supreme Court disagreed and stated “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 fact that a general measure does not provide for individual assessment of those concerned does not, of itself, involve any breach of the Directive ([73]-[76]).

The Supreme Court noted that CJEU jurisprudence following Donnellan v. Minister for Justice and Law Reform and Others [2008] IEHC 467 does not support individual assessments. The Supreme Court found that such individual assessments can give rise to disputes and can also potentially impact upon the dignity of employees. The Supreme Court found that the avoidance of an individual capacity assessment has been recognised as a legitimate aim in favour of justifying a general retirement age (paragraph 74).

The Supreme Court also held, inter alia, that:

·         The “consistent and systematic” and “coherent” application of mandatory retirement rules is not only permissible but is an important element of the proportionality analysis under the Directive (paragraph 76).

·          A mandatory retirement age which is lower than 70 applies in certain areas, including An Garda Síochána, the Permanent Defence Forces and the fire services where “[p]articular considerations apply” (paragraph 97).

·         The decision to adopt a mandatory retirement age is a matter for the relevant competent authority which (in this case) is “better placed that the courts to assess what [is] necessary or appropriate for the effective operation of the coronial system”. Courts have a limited role insofar as they are only concerned with whether the competent authority’s judgment appeared to be unreasonable (paragraph 104).

·         While there were admissibility issues surrounding a Ministerial statement in the Dáil, a general policy to increase mandatory retirement ages is not inconsistent with recognising and legislating for specific needs in an area (paragraph 108).

·         Significant reliance could be placed on whether any financial hardship would arise, and this would go to an analysis of the proportionality of the mandatory retirement age (paragraph 110).

Courts have a limited role in reviewing such a judgment: they do not carry out a de novo assessment but are concerned only with whether the judgment made by the competent authorities appears to be unreasonable.

The key point of clarification from Mallon is that an employer is not required to justify the application of a general retirement age to an individual employee. Such a requirement would substantially negate the benefit of having such a rule in the first place. In other words, once the aims sought are legitimate, and the measure is proportionate, a mandatory retirement age rule will not offend the prohibition on age discrimination notwithstanding that it does not entail an individual assessment of those subject to the rule.

There was no dispute that the Complainant was required to retire on reaching the mandatory retirement age of 60 years old. He had sought an extension of his contract of employment, which was denied. I find that the Complainant has established a prima facie case that an act of discrimination took place in relation to a mandatory retirement on his 60th birthday. Consequently, the burden of proof shifts to the Respondent to rebut the presumption of discrimination.

To come within the exception under section 34(4) of the EEA, an employer must 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.

In this case the retirement age was 60 in contrast with Mallon where the mandatory retirement age was 70. However, the nature of the Complainant’s work is also challenging and demanding. The latitude given to a competent authority is wide and the role of a court or tribunal is to decide if the measure is unreasonable. That must be viewed having regard to the wider policy considerations and aims for that organisation and cannot be viewed partially or limited to one role.

The mandatory retirement age for Prison Officers to whom the Superannuation (Prison Officers) Act 1919 applies was out in section 8(1) of the Civil Service Regulation Act 1956, which was subsequently amended by the Courts, Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Act 2024). At the relevant time, there was no provision for an extension or variation of that statutory retirement age.

There was no dispute that the Complainant commenced his employment with the Respondent on 23 November 1987. The Complainant was at all times aware that he was required to retire at age 60.

The Complainant’s Established position as Prison Officer in the Department of Justice Part I (conditions which apply particularly to appointees to this position) specify as follows:

10. Retirement: Retirement is compulsory at 60 years of age but an officer may be required to retire at any time after 55.

The Complainant signed Form of Acceptance on 20 November 1987 confirming that he was prepared to accept appointment as a Prison Office in accordance with the regulations and condition of service.”

Legitimate Aim

The Respondent submitted that the compulsory retirement age of 60 for prison officers pursued a number of legitimate aims which have been accepted by the domestic courts and the Court of Justice.

·         Health and safety and personal and professional dignity

The Respondent relied on its justification for the retention of the mandatory retirement age of 60 and for excluding Prison Officers from the proposals and the subsequent Public Service Superannuation (Age of Retirement) Act 2018 contained in the letter to the Department of Finance and Public Expenditure & Reform dated 28 November 2017 which noted the labour intensive and challenging 24/7, 365 days a year nature of the prison environment; the threat of violence; dealing with death and incidents of self-harming of prisoners; and witnessing assaults. The letter further noted research indicating high level of stress associated with the Prison Officer’s role and the dehumanising effect on the Officers. The letter went on to discuss the levels of fitness and alertness required for the role and the level of sick leave in the organisation.

In its submission, the Respondent also put forward the following:

·         Intergenerational fairness, creation of an age balance in the workforce, motivation and dynamism through the increased prospect of promotion;

·         Workforce Planning

I note that neither of the two points were raised in the letter to the Department of Finance referred to above.

The CJEU jurisprudence outlined in the Mallon Case upheld the position that a legislative measure which does not identify the aim being pursued but does provide a general context of the measure concerned, can be relied on to identify the underlying aim of the measure.

The Supreme Court in Mallon unanimously determined the relevant competent authority is “better placed than the courts to assess what is necessary or appropriate for the effective operation of”, in this case, prison service.

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.”

I note that in recognition of the physical demands of the job as well as the operational demands of these services, certain uniformed public service employees (An Garda Síochána, the Permanent Defence Forces, Prison Officers and Firefighters) benefit from fast accrual pension terms. This arrangement allows individuals to accrue maximum benefits quicker and was established specifically to accommodate the uniquely demanding physical and operational requirements of frontline uniformed staff, which necessitate an earlier mandatory retirement age.

The mandatory retirement age for Prison Officers is set out by relevant legislative provisions. Prior to 19 August 2024, the mandatory retirement age was 60 years of age. Post 19 August 2024, the mandatory retirement age is 62 years of age.  The increase was introduced after the Complainant had been retired. At the relevant time, the Respondent acted in accordance with the relevant legislative provisions.

I note that the Complainant did not raise any difficulty with the benefit of the accelerated accrual arrangements that would allow him to retire early with full pension entitlements (in recognition of the demanding nature of the role). However, he also seems to suggest that despite these arrangements, he should not be precluded from continuing in his employment beyond the retirement age.

I note further note the uncontested evidence of Governor Leyden regarding the workforce and succession planning and, in particular, that the Complainant’s role was filled through a promotion. The Complainant’s submission also outlined the promotional opportunities that became available to more junior staff around the time of his retirement.

Collins J in Mallon noted thata fixed retirement age enables the Respondent to plan recruitment and promotional opportunities and also enables the retiring employee to plan for their retirement.

The Respondent has a staff structure and succession framework through e.g. transfer panel and promotional opportunities in place. The Complainant, by his own admission, benefited from these promotional opportunities as he progressed through the ranks. The Complainant seems to suggest that allowing him to remain in employment would not have affected the workforce planning. He appears to overlook the fact that the Respondent cannot treat his case in isolation. Any departure from the established retirement policy could have wider implications and may create knock-on effects for other employees.

I find that the Respondent is best placed to assess what is necessary and appropriate for the effective operation of the Prison Service. I accept that both the physical and mental capabilities of Prison Officers are integral to the role and to the proper functioning of the service. I further note that the Respondent acted in accordance with the applicable legislative framework at the relevant time. The Respondent’s decision was nothing more than the implementation of the State’s policy as underpinned by the legislation which did not give any discretion to individual public sector employers to extend an individual Prison Officer’s employment beyond his or her sixtieth birthday.

In these circumstances, I am satisfied that the Respondent has demonstrated that the mandatory retirement age was objectively and reasonably justified by legitimate aims.

Appropriate and Necessary Means

One of the key considerations in Mallon waswhether the State’s policy of mandatory retirement has been applied in a “consistent and systemic matter”, and whether any exceptions to the regime give rise to such inconsistency. Collins J noted examples of public sector employees that have lower retirement ages, such as Gardaí and the Defence Forces. It was held that the Directive does not require a mandatory retirement regime that applies a uniform retirement age across the public service. The State may provide for a different retirement age to a specific category of public servant where there is a rational and objective basis for doing so. 

The Complainant was clearly aware of the mandatory retirement age of 60. In that context, it was submitted on behalf of the Complainant that there were numerous comparators who, he asserted, have been permitted to remain in employment past retirement age.

I note that the Complainant relied on four comparators. Three of them have not reached the retirement age, which in 2024 was increased to 62. Therefore, they are not valid comparators for the purposes of the Complainant’s claim.

Regarding the fourth comparator, Mr Whelan, there was no dispute that he was a Governor at the time of retirement in 2012. There was also no dispute that he was, in fact, retired at the age of 60. While, due to what appears to be exceptional circumstances and his extensive knowledge and experience, Mr Whelan was re-engaged post-retirement, the re-engagement was in an unestablished capacity. A copy of Mr Whelan’s contract of employment signed by him on 23 February 2012 was furnished by the Respondent post-hearing nd copied to the Complainant’s representative. Correspondence from the Personnel Officer at that time was very clear that Mr Whelen would retire on 29 February 2012 and that the contract is for “the Temporary Appointment to Position of Campus Governor”. The contract was, again, very clear that Mr Whelan’s service was required for the period from 1 March 2012 to 31 August 2013 “in order that your specific skills and expertise can be deployed in delivering, in particular, the duties set out in a paragraph 6 of this contract, namely the development of the Campus structures at the Mountjoy Campus, participation in and implementation of the finding of eth Task Review process provided for under the Public Service Agreement 2010-2014 as it appliesat that Campus and the delivery of mentoring and support to subordinate Governor grades.”

At clause 10, the contract provided that Mr Whelan’s pension would be abated in accordance with the Pension Abatement Act, 1965.

I note that at para 95 in Mallon it was held that “it cannot be plausibly suggested that the ad hoc and one-off exception to Section 12(6)(b) made by section 6(2) of the Court Officers Act 1951 (which provided that the age of retirement of the then serving sheriff in Dublin City should be 72 rather than 70) affects the coherence of the current mandatory regime, either generally or in its specific application to sheriffs.”

For these reasons, I find that there was a “consistent and systematic” and “coherent” application of the mandatory age in accordance with the legislative provisions by the Respondent.

At para. 10 of the Mallon judgment, Mr Justice Collins held:-

“A significant factor in assessing whether a mandatory retirement rule is “appropriate and necessary” will be the financial impact on the persons involved and whether it will result in undue hardship to them. In that context, whether they will, on retirement, be entitled to an adequate pension is an important consideration.”

While financial hardship is a significant factor in assessing proportionality, this was not a consideration argued in this case. The Complainant was in receipt of his full pension entitlements and, by his own evidence, undertook some additional work post-retirement.

The Complainant placed significant emphasis on his own physical fitness and the fact that he had not been individually assessed. However, in Mallon, the Supreme Court held that the avoidance of individual capacity assessment has been recognised as a legitimate aim capable of justifying a general retirement age due to the scope for disputes such assessment necessarily involves and because of its potential impact on the dignity of employees. The Supreme Court held that the absence of flexibility on a case by case or role by role basis does not, on its own, render a measure disproportionate. It is reasonable to adopt generally applicable mandatory retirement rules without any requirement for individual capacity assessment. Moreover, the “consistent and systematic” and “coherent” application of such mandatory retirement rules is not only permissible but is an important element of the proportionality assessment under the EEA and the Directive.

In the circumstances, I find that the Respondent’s means of achieving the legitimate aims were appropriate and necessary.

I determine that the Respondent acted in compliance with section 34(4) of the Act in that the mandatory retirement age it applied was objectively and reasonably justified by legitimate aims; and the means of achieving those aims were appropriate and necessary. In the circumstances, I find that the Complainant was not discriminated against and that this complaint is not well founded.         

A considerable amount of opinion evidence was advanced by witnesses at the adjudication hearing. For the avoidance of doubt, I have not taken such evidence into account in reaching my decision.

For completeness, as I have found that the Respondent acted in compliance with section 34(4) of the Act, there is no need for me to consider the parties’ submissions separately under section 37 of the Act.

For the reasons set out above, I find that the Complainant was not discriminated against on the grounds of age and that this complaint is not well founded.        

The Complainant alleges that he did not receive a statement in writing of his terms of employment. The Respondent rejects the claim.

There was no dispute that the Complainant commenced his employment with the Respondent in 1987, prior to the commencement of the Terms of Employment (Information) Act, 1994.

Section 6 of the Act deals with the rights of existing employees. 

Existing contracts of employment

(1) Where, before the commencement of this Act, an employee has entered into a contract of employment with an employer, then, the employer shall, if so requested by the employee, furnish to the employee a statement containing the particulars specified in subsections (1) and (1A) of section 3 and, if so requested by the employee, there shall be added to the statement the particulars specified in section 4.

(2) An employer shall, within 2 months after the employer has been required to do so under subsection (1), furnish to the employee concerned a written statement in accordance with that subsection.

It was the view of the Employment Appeals Tribunal in Murphy v Tesco Ireland Ltd TE7/1999 that an essential proof in a case involving a complaint that an employer has contravened section 6 is whether the employee has made a specific request to the employer for a statement under section 3 and/or section 4.

There was no dispute that the Complainant received an offer of employment dated 18 November 1987. I note that the cover letter stated:

“A copy of the conditions of service attaching to the post is enclosed. You are advised to read those conditions very carefully.

If you are prepared to accept appointment in accordance with the regulations and conditions of service, please complete the attached form and return it to reach the Department by Monday 23rd November, 1987.”

The Complainant signed and dated on 20 November 1987 a Form of Acceptance stating:

“I acknowledge receipt of the letter dated 18 November 1987 from the Department of Justice, together with a copy of the conditions of service attaching to the post of Prison Officer…”

In his email dated 10 May 2023 to Mr Stenson, the Complainant requested “A copy of the contract you mentioned that I signed over 36 years ago as I have no memory of same.” This was provided to him.

I find that the Complainant did not request a statement containing the particulars specified in subsections (1) and (1A) of section 3 of the Act. The Complainant's requested, and was provided with, a copy of the contract which was issued to him and which he signed in 1987. Accordingly, there was no breach of the 1994 Act.

I declare this complaint to be not well founded.

Mandatory retirement age – terms of employment -