Complainant

Respondent

Parties

Sean  Kenny

Multi-Color Labels Castlebar Ireland Limited

Representatives

Ronan Cunningham,  Turner Hamilton Turner Solicitors

Joseph L. Bolger, ESA Consultants

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00070519-001

03/04/2025

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and four witnesses for the respondent undertook at the outset to give evidence under affirmation.  Cross examination was facilitated.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

The respondent raised the issue of delay in relation to the lodging of this complaint as a preliminary matter.

The complainant was employed with the respondent as a lithographic printer from September 1992. He turned 65 on 12 October 2024 and his employment was terminated as a result. The complainant's contract contained a mandatory retirement age of 65.

The complainant suffered an ankle injury and was off work on medical leave for surgery on the injury for a number of months.   Prior to taking the period of leave, his supervisor asked if he intended to continue working past the normal retirement age. The complainant indicated that he had no option given the expense of the surgery and rehabilitation costs that he was facing. He was informed that he needed to submit a request three months prior to the upcoming date of retirement. He submitted his request, but the respondent refused to allow him to continue working past his 65th birthday. He appealed the decision to terminate his employment, and an appeal hearing was convened where he was assisted by his union representative in presenting his case. Unfortunately, the respondent refused to alter their decision. No reason was given to the complainant for this refusal.

Caselaw cited:

The complainant submitted that the Employment Equality Act states that discrimination occurs where a person is treated less favourably than another person on the grounds of age. Section 34(4) of the Act provides that it shall not constitute discrimination on the age ground to fix different ages for retirement (whether voluntarily or compulsory) of employees or any class or description of employees, if it is objectively and reasonably justified by legitimate aim, and that the means of achieving that aim are appropriate and necessary. The complainant submitted that a mandatory retirement age in Ireland is considered discriminatory per say, unless it is objectively justified as held in the case of Donnellan v Minister for Justice, Equality and Law Reform, (Unreported, High Court, McKechnie J, 25 July 2008).

The complaint submitted that the starting point of its case is that the mandatory retirement age is discriminatory and it is for the respondent to justify their position. The complainant submitted that the respondent has not justified its position either in the contract of employment or in the decision communicated orally to the complainant.

The complainant also cited the case of Earagail Eisc Teo v Lett (EDA1513) wherein the Labour Court stated the following:

As a matter of general principle, a termination of employment by way of retirement should be distinguished from a dismissal on grounds of age. A retirement occurs where the employment comes to an end pursuant to a condition of employment which limits an employee’s tenure to the point at which they attain a specified age. In that regard, it appears to the Court that the authority conferred on an employer by s.34(4) of the Act is to apply a condition of employment to that effect. Such a term can be provided in an employee’s conditions of employment either expressly or by implication, or it can be provided by incorporation where some other document or instrument, of which the employee had notice, can be read in conjunction with the formal contract of employment. The Court further accepts that an employer’s employment policy in relation to retirement can take effect as a contractual condition of employment which is, prima facie, protected by s.34(4) of the Act. However, in the Court’s view that could only arise where the policy is promulgated in such a manner that the employees to whom it applies either knew, or ought to have known, of its existence.

The complainant submitted that although he was aware of the term in his contract of employment, he reasonably believed that his request would be granted given the custom and practise of the respondent.

The complainant also cited the case of Patrick Cassidy v Portfolio Concentrate Solutions Unlimited (ADJ-00027954) wherein the complainant, who was represented by his union, contended that he had not been notified of any retirement and was willing to undertake any work.  At the hearing of that case, the employer admitted that the retirement age was a policy decision but was not contractual. The Adjudication Officer found in favour of that complaint awarding €40,000 which was equivalent to 40 weeks’ pay.

Complainant evidence:

The complainant confirmed that he worked as a printer operator until his retirement. He also confirmed that he was familiar with and aware of the mandatory retirement age. He confirmed that from April to the end of September 2024 he was out of work on sick leave and that during this time a person was redeployed into the role that he had occupied.

The complainant stated that he had indicated in discussions with his line manager in April that he wished to work on after his retirement and he stated that he sent a written request in July 2024 to that effect. He stated that although the respondent claimed that the letter in response to this was hand delivered to him, he has no memory of receiving it. He stated that an appeal meeting took place in October but that he also cannot remember receiving the letter with the appeal outcome. He stated that he must have left in September but could not remember.

The complainant was asked why he thought his request was refused and he stated that, in his opinion, the person who replaced him was getting paid less. He also noted that four named colleagues were permitted to remain on after their retirement age: one in 2025 - who sought the extension in 2023, 1 in 2022 and two others in the early 2020’s.

Under cross examination the complainant confirmed that he had a good working relationship with his employer who considered him to be a good employee. He stated that he was aware of the contractual age of retirement at 65 and he was also aware that his company pension was due to mature once he turned 65.

He was asked whether the company sought to retain people after the age of 65 and he replied that they did but confirmed that he was not aware of any changes in staffing nor any changes in the printing aspect of the business. He was asked whether he was aware that his replacement had been a digital printer who had been retrained and redeployed to the lithographic printer side and respondent that he was not aware of this.

As to the delay in applying to the WRC he stated that he was waiting for the process to play out with the involvement of the union. He confirmed that he did not ask for any alternatives because he believed there were no options available to him.

The respondent submitted that it provided a contract that expresses the retirement age, and that this was signed by the complainant. Therefore, there can be no breach of contract, the terms of the contract were complied with.   The respondent submitted that it provides a pension contribution of 3% maturing at age 65 which the complainant also contributed, clearly proving that his retirement at age 65 was in line with the contract and was provided for. The respondent noted that it contributed to his AVC’s in addition to this.

The respondent submitted that it has a comprehensive succession programme. The program was the subject of discussion and agreement with Unions. The respondent had a younger operative assigned to the complainant’s machine as part of succession planning for over a year prior to his retirement.

The respondent submitted that it was claimed by the complainant that a number of colleagues had requested, and were granted, an extension to continue working past the retirement age of 65.  The respondent submitted that this was factually incorrect. It noted that over the past couple of years, four people retired in line with the expressed contract terms of 65. One applied for, and completed his extension in circumstances entirely different to the complainant. That colleague that applied in December 2023, completing his extension in December 2024.  During this time the respondent had the capacity to facilitate his extension.  However, during 2024, 22 employees left and were not replaced. This rendered the business with no capacity to accommodate the complainant.

The respondent submitted that in March/April 2025, the respondent approached the complainant to enquire as to his intentions to stay on.  It was suggested by the respondent that this alone is being mentioned as an act of discrimination.

The respondent submitted that the complainant asserted that at his appeal meeting in October 2024, when he was approached regarding his intention to say on in March, he said his reply was, “he had no choice due to the cost of his surgery”. This was not the respondents understanding. The respondent submitted that he was non-committal at that time. The complainant was absent from April until September preventing the respondent from engaging with him, however during this period some 13.5 employees left and were not replaced. In addition, shift sharing was introduced, short time working was introduced, and arrangements for using up holidays were deployed to stem the risk of redundancies.

The respondent submitted that in late September, days before his retirement and during the major slowdown in the business, the complainant met with HR, wherein he was advised of the circumstances why his request could not be accommodated.  Furthermore, in January 2025 the respondent had to give “at risk” notice to its employees as there was a further risk of redundancy.  The respondent submitted such action does envisage comparison with the other person in a comparable situation as these circumstances did not exist and is therefore not a sustainable claim.

The respondent submitted that the complainant alleges that it has failed to justify the mandatory retirement on reasonable objective grounds in pursuant of a legitimate aim. The respondent submitted that this is a speculative statement without any merit and contrary to the complainant’s knowledge of its procedures.  The respondent submitted that it has a long-established structure of training, succession planning, and provides pension for employees after the age of 65.

The respondent submitted that the complainant asserted that he requested a postponement to his retirement by way of email on 8 July 2024. It suggested that he also says that he requested a postponement of his retirement verbally but that he is vague as to when.  Notwithstanding this the respondent submitted that it was no longer a matter of a request, it was the company’s capability to accommodate any such request.

The respondent submitted that the complainant had access to HR, & Trade Unions. He met with HR and had representation. He was aware of the facts regarding the company trading circumstances. He was further afforded the right to appeal the decision, but he offered no alternatives.

The respondent submitted that the complainant’s retirement was not discriminatory.

Caselaw cited:

The respondent submitted the following caselaw for consideration:

Earagail Eisc Teoranta v Richard Lett EDA1513, where the Labour Court held that as a matter of general principle, a termination of employment by way of retirement should be distinguished from a dismissal on grounds of age. A retirement occurs where the employment comes to an end pursuant to a condition of employment which limits an employee’s tenure to the point at which they attain a specified age. The respondent submitted that the Court held that a term of employment regarding a retirement age, within the provision of S34 (4) of the Act, can be provided in an employee’s conditions of employment either expressly or by implication.

The respondent submitted that in the case of Seamus Mallon -v- The Minister for Justice, Ireland, and the Attorney General [2024] IESC 20, (hereinafter “Mallon”), the Supreme Court upheld the High Court finding in favour of the State to uphold the mandatory retirement age of 70 for sheriffs. In doing so, the Supreme Court provided welcome clarity on the manner in which the legality of mandatory retirement ages is to be assessed. The Court referred to The Employment Equality Acts 1998 – 2015 (hereinafter, “the EEA”) transposed the Employment Equality Directive into Irish law and prohibit discrimination on nine grounds, including age. As such, the termination of employment due to age could be construed as discrimination unless it falls within S34(4) of the EEA (or Article 6 of the Directive) which provides it is permissible to fix a retirement age if: -( i) it is objectively and reasonably justified by a legitimate aim; and ii) the means of achieving that aim are appropriate and necessary.

The respondent noted that at section 19, the Judge then addressed the substantive complaints made by the complainant. In light of the decision of the CJEU in Case C-411/05 Palacios de la Villa and of the  High Court (McKechnie J) in Donnellan v Minister for Justice [2008] IEHC 467, there was, in her view, no doubt that the mandatory retirement age in Section 12(6)(b) was discriminatory on age grounds unless it could be brought within Article 6 of the Employment Equality Directive (as transposed by section 34(4) of the 1998 Act). The “core question” was whether it had been demonstrated that section 12(6)(b) was “objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and whether the means of achieving that aim are appropriate and necessary” (para 78).

The respondent submitted that it shall not constitute age-based discrimination under S34(4) of the 1998 Employment Equality Act, that states, that it shall not constitute age-based discrimination for an employer to fix different retirement ages for employees or any class of employees if the means of achieving that aim are appropriate and necessary. This provision allows for age-related retirement policies as long as they are justified by legitimate aims, such as intergenerational fairness, health and safety, and succession planning.

The respondent submitted that in the case of A Traffic Warden v A Local Authority ADJ-00009096 in which a dispute arose in relation to the existence of a mandatory retirement age in the employee’s employment. In that case the employee alleged that the employer had introduced a mandatory retirement age where no such provision was set out in the employee’s contract of employment. In finding that the employer’s policy in respect of retirement age had been implied into the employee’s contract, the Adjudication Officer placed specific reliance on the fact that documentation in relation to the employee’s pension (which had been presented to the employee at a Superannuation Information Talk) referred to the retirement age in operation within the employer.

The respondent submitted that in Paul Doyle v ESB International Limited DEC-E2012-086 where the employee was deemed by the Equality Tribunal to have been bound by a retirement age which, despite not being stipulated on his contract of employment, was an established practice within the company. The company put forward two arguments by way of objective justifications for the mandatory retirement age in question. The company’s main argument was that fixing a retirement age of 65 was necessary to provide promotional opportunities and career pathways and thus retain younger employees. The company was able to show that it allocated extensive resources to training its staff. The Tribunal accepted that the notion of “sharing employment between generations” has been found to be objectively justifiable by the European Court of Justice. On this basis, Mr Doyle’s claim failed.

The respondent noted that in Thomas Doolin v Eir Business Eircom Limited (2023) the WRC held that the imposition of a mandatory retirement age was not objectively justified, and the complainant was re-instated into his previous role. The WRC emphasised the requirement to assess each situation on a case-by-case basis to ensure that the imposition of a mandatory retirement age was objectively justified.

The respondent submitted that In Patrick O’Callaghan v Ferrero Ireland Ltd (2023) the WRC made an award of €20,000 for discriminatory dismissal on the grounds of age following the imposition of a mandatory retirement age. The respondent sought to rely on health and safety grounds for the imposition of a mandatory retirement age which was applied consistently across the company.

Respondent witness evidence:

The first witness for the respondent was the shift production manager who indicated that he had been five years with the company. He stated that he had regular contact and interaction with the complainant who was a good employee. He stated that in March or April he had two conversations with the complainant regarding post-retirement employment. He stated that in the first conversation he asked the complainant would he like to continue working but got no real answer and the second time the complainant did not really indicate his intentions. He stated that the complainant was absent from work for a period of time and the trainee was assigned to cover his machine. He stated that the training was part of a long training programme that was well established within the respondent employer and that that person remained on that machine after the complainant retired.

The witness noted that the business performance in 2024 was a lot less than it had been in previous years. He added that significant numbers left employment. He stated that he had no conversation with the complainant after April until he returned to work later in the year. He stated that he had no contact with the named comparators except for one who had stayed on, and the witness noted that business was better in 2023 in comparison to when the complainant had sought to stay on after his retirement.

The witness was asked whether business had picked up since the complainant left but he noted that the company was still only running 2 shifts per week not three as had previously been the case.

Under cross examination he confirmed that the trainee was not a new employee, that he had worked for the company for maybe two to three years. He noted that the trainee was redeployed when the digital process was removed from the company and accordingly had to go undergo a training course. He confirmed that he was not consulted in relation to any other roles or a reduced hour’s role that may have been suitable for the complainant.

The second witness for the respondent was the employee who was responsible for regional Human Resources issues. She stated that she had no regular dealings with the complainant but had been a part of the appeal meeting with the complainant and plant manager. She recalled that there had been a reduction in the volume of work and that the company was relying on natural attrition to reduce its workforce and that this was explained to the complainant. She stated that this reduction in volume was not necessarily in the print area but was in other areas, however she confirmed that she wasn't 100% sure of this as she did not work in the various different areas. She confirmed that she was involved in the extension of the employment of one of the named comparators and noted that when that extension was given consideration centred around the business needs and volume work on hands as to whether they could offer an extension to a staff member.

Under cross examination she confirmed that extension employment after the age of 65 was dealt with on a case-by-case basis based on the business needs of the employer. She confirmed that there was no written policy but noted that the matter was a business practice. She confirmed that she had been involved in previous requests and noted that nobody had made up this practice after the fact to suit the process. She confirmed again that when an employee requests to work on after retirement age that is the process, and it's based on business needs at the time of the request.

The witness confirmed that the company had a need to reduce headcount and confirmed that a redundancy process was carried out in 2025. When asked whether other roles were considered for the complainant, she said no that they were not.

The third witness for the respondent was the Operations Manager/Plant Manager.  He stated that he would have met the complainant on an occasional basis. He noted that the four people named as comparators were from different departments where various staff were let go as well. He stated that there were now 4 printers doing only two shifts and that the trainee programme was a 12-to-18-month programme. He confirmed that he had no idea of the difference in pay between the complainant and the person who took over the role after the complainant retired. He noted that the company was trying to rely exclusively on natural attrition to reduce its headcount.

Under cross examination he confirmed that the retirement and the extension of the work for individuals was based on business needs. He confirmed that the person who came across as a trainee printer was not a new employee. He stated that trainees came over to that side of the business a lot.

Witness #4 for the respondent was the HR Manager the two of the respondent worksites. She stated that the company pension started when someone reached the age of 65 and the complainant was in receipt of the pension since his retirement. She noted that the company’s general position regarding staying on depended on the capacity and business needs of the respondent. She stated that the company's performance was not great in the intervening period and that up to 17 people had left through natural attrition and had not been replaced. She stated that the training programme is an apprenticeship, and you have to have a certain number of people coming through at any given time to ensure its continuity.  She stated that the trainee came from the digital press side of things and would not have been a new entrant. There was no cross examination of this witness.

Preliminary Matter: Lodgement of complaint.

The respondent raised the matter of delay in relation to the lodging of this complaint noting that the complainant waited until 8 days before the expiration of the 6-month time period provided for in the legislation to submit his complaint to the WRC. 

Section 77(5) of the Act deals with the timeframe form submission of complaints to the Director of the Workplace Relations Commission and states as follows:

(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

 (c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

The complainant’s employment came to an end on 11 October 2024, and he lodged his complaint on 3 April 2025.  Accordingly, he has lodged his complaint within the 6 months laid down in the legislation.

Substantive matter: Age Related Discrimination.

Section 34(4) of the Act states as follows:

(4) 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.

The respondent had clearly set out its retirement age in the contract of employment and the complainant confirmed that he was aware of the retirement age. It also appears that the respondent operates a succession planning system, given that the retiree’s replacement was being moved to training on the machine up to one year before the complainant’s retirement.  However, it was not disputed that the respondent has employed some former employees after the contractual retirement age.

The question to be considered at this stage is whether the respondent can avail of the defence outlined in Section 34(4). 

Having regard to the caselaw cited by the parties, certain citations refer to a situation where the various respondents had not notified the retirement age to its staff members.  That is not the case in relation to this complainant and respondent.  Both parties are in agreement that the retirement age was outlined in the contract of employment and both parties were aware of its existence on an ongoing basis. Other cases referred to employment in the Public Sector, which is not specifically relevant here.  Other cases cited relate to a situation where the complainant does not have any source of income, save social welfare payments upon retirement. 

The facts that differentiate this case are as follows: the retirement age was laid down in the contract of employment, and the complainant was aware of its existence.  The retirement age does not seem to have been justified in writing in either the contract of employment or in a standalone employee handbook or retirement policy, at least such was not submitted to the WRC for consideration.  Furthermore, the complainant was in receipt of his company pension from the date of his retirement.  The foregoing differentiates this complaint from the specifics of the cases cited.  However, general principles from the various citations are useful when considering this complaint.

The respondent in its submissions and in the witness evidence in support of the respondent outlined that it operates its retirement policy on a succession planning basis.  Although the respondents staff outlined a rationale for the retirement age, i.e. that of succession planning, which is reasonable, this rationale is not detailed in either the contract of employment nor in any handbook or policies submitted to the WRC.  Therefore, it is difficult to see how the rationale for the retirement age was within the knowledge of the workforce, and more specifically that the complainant was aware of this rationale.

Additionally, I note that the rationale of succession planning was not the reason relied upon by the respondent in its communication of 24 September 2024 wherein it noted that an extension of the complainant’s employment would not be possible “due to business needs and the forecast over the next six months”.  Although this may have been a factor, it is not the one relied upon by the respondent, i.e. succession planning.  Business needs and the economic forecast were not set out when providing for a retirement age and it appears that although this may have been taken into account for previous extensions, it does not appear to be set down anywhere in the documentation provided by the respondent regarding previous extensions.

The witnesses were credible when providing their evidence.  I note though that In giving his evidence, the complainant was somewhat hesitant in answering questions put to him directly and some of his answers were not particularly clear.  In comparison the respondent witnesses gave clear concise evidence. However, their evidence points to a lack of objective justification of the retirement age in writing, and any consideration of the means to achieving that justifiable action.

In all the circumstances of this case, I am satisfied that the complaint is well founded.  The complainant was retired on the age ground.  I am satisfied that the complainant has established a prima facie case of age-related discrimination.  I find that the respondent has not established an objective justification for the discrimination nor that it was appropriate and necessary such as to avail of the defence outlined in Section 34(4) of the Act. No rationale on retirement age or policy was set down in writing.

Having regard to all the circumstances of this complaint, including the fact that the respondent has set a contractual retirement age and that the complainant was aware of that term in his contract, I consider that an award of €5000 is just and equitable in this case.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that a prima facie case of age-related discrimination has been established and that the respondent is not entitled to rely on the defences outlined in Section 34(4) of the Act. 

Arising from the foregoing I order the respondent to pay the complainant compensation of €5000 which I consider to just and equitable in all the circumstances of this case.

In addition, I order the respondent to set down, in writing, the rationale behind its contractual retirement age and to provide such written rationale to all current and future employees.

Employment Equality – Age related discrimination – complaint established – no objective justification – award of compensation