Complainant

Respondent

Parties

Rajamohan  Pillay

CG Hotels Limited T/A Park Inn by Radisson Shannon Airport  amended on consent

Representatives

Self-represented 

HR

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00071621-001

16/05/2025

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

CA-00071621-002

16/05/2025

The Complainant commenced his employment with the Respondent on 19 April 2011.  He was paid €13.50 gross per hour at the time of the termination of his employment and earned approximately €27,040 gross (approximately €25,000 net) per year.

On 16 May 2025, he referred his claims to the Director General of the WRC alleging that

1.        The Respondent failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed-term contract and failed to offer him a contract of indefinite duration.

2.       The Respondent discriminated against him on the grounds of his age.

The Respondent rejects the claims.

In his WRC complaint referral form, the Complainant named the respondent as Windward Management T/A Park Inn by Radisson Shannon Airport with an address at 19-20 Fleet Street, Dublin 2, Dublin.

A letter informing of the arrangements for the hearing to be held on 23 October 2025 issued on 29 September 2025 to the named respondent at the address provided. There was no attendance by the named respondent at the hearing.

At the adjudication hearing on 23 October 2023, the Complainant confirmed that the correct respondent was Park Inn by Radisson Shannon Airport, as per the trading name included in his complaint form.  He stated that Ms Theresa Flynn was the HR Manager at the Respondent. He further clarified that Windward Management was a management company but not his employer.

In light of the Complainant’s submission regarding the correct respondent, I was not satisfied that the correct respondent was properly on notice of the hearing. The hearing was adjourned.

Correspondence informing the Complainant and Park Inn by Radisson of an adjudication hearing scheduled for 8 January 2026 issued on 3 December 2025 to the Complainant and to Ms Flynn at Park Inn by Radisson.

Ms Amanda Meade, HR Director of Windward Management and Ms Theresa Flynn, HR Manager of Park Inn by Radisson Shannon Airport attended the hearing on 8 January 202.

At the hearing, Ms Meade and Ms Flynn explained that Windward Management had never been the Complainant’s employer; the Complainant’s payslips and contract clearly indicated that his employer and the Respondent in this case was CG Hotels Limited T/A Park Inn by Radisson Shannon Airport. Ms Flynn consented to the amendment of the complaint form to reflect the correct Respondent.

At the adjudication hearing on 8 January 2026, the Complainant made a verbal submission suggesting for the first time that there were three employees who worked for the Respondent beyond the age of 65 years. The Complainant provided three comparators as follows: Mr M and his wife Mrs M who allegedly were 66 years old at the relevant time and remained in the Respondent’s employment, and Ms O who was 70 years old when she retired in 2012. The Respondent was unable to address the matter as it was unaware prior to the hearing of the details of the comparators. In the interest of fairness, I adjourned the hearing to allow the Respondent to review its records and respond to the allegations in the context of the three comparators named in particular.

A third day of the hearing was scheduled and concluded on 22 April 2026.

In his WRC complaint form, the Complainant alleged as follows.

CA-00071621-001 under section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

The Complainant alleged that he did not sign the fixed-term contract. He submitted that he was informed that the Respondent only allowed him to work until he was 65. He would then get an extension until he was 66. The Complainant refused to sign a document he was asked to sign as he believed he could work past this age. The Complainant asserted that people have worked past this age before and currently. The Complainant asserted that he was forced to retire and he did not want to.

CA-00071621-002 under section 77 of the Employment Equality Act, 1998

The Complainant alleged that he was discriminated against by the Respondent by reason of his age. He stated that the most recent date of the alleged discrimination was 12 January 2025.

The Complainant alleged that he had to retire at 66 years. He submitted that he had a mortgage that he needed to keep paying for another five years and he did not want to retire. The Complainant submitted that he was fit and healthy and did not see any problem with him working for many years to come. There are other people still working with the Respondent that are over the age of 66 and previously there were people working past this age.

Summary of the evidence and cross-examination of the Complainant

The Complainant gave evidence that when he turned 64, he was informed by the Respondent that he would have to retire at 65 years of age. He was told that he would get an extension on a fixed-term basis until the age of 66.

The Complainant stated that in December 2024 he met with Ms Flynn, HR Manager and Mr Liam Doherty and he was informed that he could work on a fixed-term basis until January 2025. The Complainant said that he received a copy of the fixed-term contract but did not sign it. He did not raise any issue at that time. He said that he worked until January 2025. He requested to remain in employment for another one-year fixed-term period, but his fixed-term contract was not renewed.

The Complainant alleged that his work colleagues, Mr M and his wife, Mrs M were working for the Respondent when they were 66. He said that they were let go or retired now. The Complainant alleged that there was another person who worked until she was 70 years of age when she retired in 2012.

In response to the Respondent’s submission, the Complainant stated that he was not aware of time limits.

The Respondent furnished a written submission as follows.

Background

The Complainant commenced his employment on a 1-year fixed term contract on 12 January 2024 as a Food and Beverage Assistant and was paid €13 per hour. He had previously worked from 19 April 2011 to 11 January 2024 and that contract had ended by virtue of him reaching his 65th birthday.

The Complainant’s second period of employment with the Respondent ended on 12 January 2025 when his 1-year fixed term contract expired.

CA-00071621-001 under section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003:

The purpose of the Protection of Employees (Fixed-Term Work) Act, 2003 (“the Act”) is to provide for the implementation of Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE, and CEEP. The Directive pursues two objectives, one of which is to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships. It was left to Member States to determine under what conditions fixed term employment contracts or relationships shall be regarded as successive.

As the Complainant was only engaged on one fixed-term contract, on completion of which his employment ended, the provisions of the legislation do not apply.

CA-00071621-002 under section 77 of the Employment Equality Act, 1998:

Introduction

The Respondent denies in full the Complainant’s allegation that he was discriminatorily dismissed on the age ground in January 2025. The Complainant’s employment ended on 11 January 2024 upon reaching the Respondent’s normal mandatory retirement age of 65. He was subsequently offered and accepted a 12-month post-retirement fixed-term contract ending on 12 January 2025. The contract expired by effluxion of time, consistent with accepted employment practice around post-retirement fixed-term arrangements.

To the extent that the Complainant seeks to challenge his retirement in January 2024, such a claim is statute-barred as it was lodged in May 2025, well outside the six-month period specified in section 77(5) Employment Equality Acts.

Additionally, the alleged comparators relied upon are inapplicable as the colleagues in question worked beyond 65 on open-ended terms and were never placed on a post-retirement fixed-term contract.

An appropriate comparator would require: (a) a colleague of a different age; (b) who had been placed on a post-retirement fixed-term contract; (c) and whose fixed-term was renewed while the Complainant’s was not. No such comparator exists.

Relevant Factual Background

Retirement at age 65

The Complainant reached the Respondent’s normal contractual retirement age of 65 in January 2024. Upon retirement, the underlying employment relationship concluded, consistent with widespread practice recognised in equality commentary and mandatory retirement jurisprudence.

Post-retirement fixed-term contract (January 2024 – January 2025)

In line with common practice across the jurisdiction, the Respondent offered the Complainant a one-year fixed-term contract commencing immediately after retirement. This contract stated a clear termination date in January 2025 and made no provision for renewal.

The fixed-term expired on its natural end date. The expiry of a fixed-term contract, including post-retirement fixed-term arrangements, does not constitute a dismissal.

Issues for Determination

1.       Whether the Complainant was “dismissed” within the meaning of the EEA, given the expiry of a post-retirement fixed-term contract.

2.       Whether the Complainant has established a prima facie case of age discrimination under the Labour Court framework as set out in the Margetts and Valpeters decisions.

3.       Whether the comparator advanced is legally valid in circumstances involving the non-renewal of a post-retirement fixed-term contract.

4.       Whether any challenge to the January 2024 retirement is statute-barred.

Legal Submissions

The claim of discriminatory dismissal in January 2025 is without foundation. A recent WRC decision, which is on all fours with the instant case, confirms that employers are entitled to rely on fixed-term arrangements after mandatory retirement and that the failure not to renew such contracts is not discriminatory. Specifically, in the case of Pauline Walsh v Bausch Health Ireland (ADJ-51189), the Adjudication Officer stated as follows:

“The HR procedures document on retirement clearly sets out the retirement age as being the last day of the month where the employee reaches their 65th birthday. The fact that the Respondent exercises some flexibility in extending some employees‘ contracts by offering them a one year fixed term contract does not indicate less favourable treatment of the Complainant.”

(Adjudication Officer’s note – It is noted that this decision was overturned on appeal to the Labour Court)

Comparator relied upon is legally invalid

To establish a prima facie case under the EEA, the Complainant must demonstrate less favourable treatment compared with a valid comparator in the same material circumstances. This is set out by the Labour Court in Anthony v Margetts EDA038, it was observed that:

‘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.

In the decision of the Labour Court in Arturs Valpeters v Melbury Developments Ltd, EDA0917, the Court observed that there has to be “evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.”

In the instant case, the comparators relied upon never received a post-retirement fixed-term contract and continued working beyond 65 on an open-ended basis, which is materially different from the Complainant’s post-retirement fixed-term status.

Case law and commentary confirm that comparator selection must be contextual, and only a comparator with an equivalent contractual status is valid.

Since no colleague of a different age had a post-retirement fixed-term renewed while the Complainant’s was not, there is no appropriate comparator and thus no prima facie case.

Any claim concerning retirement in January 2024 is out of time.

The Employment Equality Acts impose a six-month limit for bringing discrimination complaints. Section 77(5) expressly states that a complaint must be brought within six months from the date of the alleged discriminatory act. If the Complainant alleges that the decision to retire him at 65 in January 2024 was discriminatory, his complaint lodged in May 2025 is statute barred and cannot be entertained.

Conclusion

For all of the above reasons, the Respondent submits that:

1.       The Complainant was not dismissed in January 2025; his fixed-term contract expired.

2.       The Complainant has not identified a legally valid comparator and has not met the prima facie burden.

3.       Any attempt to challenge the January 2024 retirement is statute-barred under section 77(5) of the EEA.

At the adjudicating hearing on 8 January 2026, the Respondent clarified that the Complainant’s first contract was one of indefinite duration. The Complainant reached the Respondent’s mandatory retirement age at 65 and remained with the Respondent on a fixed-term basis for a year. His fixed-terms contract was not renewed as there is only one fixed-term contract available to employees.

The Respondent emphasised that the Respondent’s mandatory retirement age was 65, then there was one year fixed-term contract available to bridge the gap to the state pension. On 64th birthday of an employee, management meet with the employee and lay out their options. Retirement courses and access to Active Ireland are offered to prepare the employee for their retirement. It is up to the individual staff member whether they wish to avail of the fixed-term option. The Respondent submitted that this policy is applied across the board, albeit it was not in the Complainant’s contract.

At the hearing on 22 April 2026, the Respondent submitted that it no longer had records available regarding the named comparator, the employee who retired in 2012.

Regarding Mr M and Mrs M, the Respondent agreed that they both worked post-65th birthdays, until they were approximately 67. However, it was submitted that the employees arrived as Ukrainian refugees and were allowed to work beyond 65 until they returned to Ukraine in September 2025.

The Respondent confirmed that the Complainant’s contract of employment was not explicit on the mandatory retirement age of 65. While the newer contracts do, the Complainant’s contract was never updated to reflect that.

CA-00071621-001 - section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

The Complainant alleged that the Respondent failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed-term contract and the failure to offer a contract of indefinite duration.

Section 2 of the Protection of Employees (Fixed-Term Work) Act 2003 (“2003 Act”) defines a fixed term employee as:-

“fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include—

(a)    employees in initial vocational training relationships or apprenticeship schemes, or

(b)     employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;”

“renewal” is defined in section 2 as:

“renewal” includes extension and cognate words shall be read accordingly;

In relevant parts of section 8 the Act provides as follows.

“8(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.”

Section 9 of the 2003 Act addresses successive fixed-term contracts as follows.

“9(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.

(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.”

There was no dispute that the Complainant was engaged on a fixed-term basis from January 2024 to January 2025.

There was also no dispute that there was no renewal of the Complainant’s fixed-term employment contract and in those circumstances, I find that that the Complainant has not established a breach of the Protection of Employees (Fixed-Term Work) Act.

CA-00071621-002 - section 77 of the Employment Equality Act, 1998

The Complainant alleged that he was discriminated against on the grounds of his age when he was compulsory retired. The Respondent rejects the claim.

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) 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”),”

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 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.”

In the case of Donnellan v The Minister for Justice Equality & Law Reforms & Ors [2008] IEHC 467, McKechnie J held as follows,

“…national measures relating to compulsory retirement ages are not excluded from consideration under Directive 2000/78/EC. Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate.”

McKechnie J also held 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”.

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

2(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.2

Burden of proof

Section 85 A (1) of the Act 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.”  

The Labour Court and the WRC have 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 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 this subsection. 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 presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

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.   

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.

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”).

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.

In this case the Complainant commenced his employment with the Respondent in April 2011. The Complainant was informed that he was due to retire in January 2024 on reaching his 65th birthday. At that time, the Complainant was offered a fixed-term contract of one year’s duration, until 12 January 2025.

The Complainant alleged that he requested to remain in employment for another fixed-term period of one year, which was denied and the Complainant’s employment came to an end on the expiry of a twelve-month post-retirement fixed term contract on reaching his 66th birthday.

The Complainant alleges that he was subject to discriminatory treatment on the age ground, when he was dismissed on reaching his 66th birthday on the expiry of a fixed-term contact, while two other employees remained in employment post 66 years of age at that time. The Complainant also alleged that another employee was allowed to work until she reached the age of 70, albeit I note this allegedly occurred around 2012.

A compulsory retirement age is discriminatory on the age ground. However, the Act permits an employer to stipulate a fixed retirement age 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.  It is also permissible to offer an employee who has reached or is above retirement age, a fixed-term contract of employment, provided that such an arrangement is objectively and reasonably justified.

Setting a compulsory retirement age that extends beyond what is appropriate and necessary to obtain the legitimate aim pursued by the employer falls outside the exemptions provided for under the Act. The burden of proof rests with the Respondent to show that discrimination has not occurred. To come within the exception under section 34(4) of the Act, an employer must establish firstly that it had a fixed retirement age. Secondly, the Respondent must show 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.

Was there a compulsory fixed retirement age

To avail of the exemptions provided under the Act, an employer must, in the first instance, establish that a fixed retirement age forms part of the terms and conditions of the employment.

The Complainant disputed the Respondent’s assertion that there was a compulsory retirement age in existence. The Complainant contended that there was no express retirement term within his written statement of terms of employment. He further asserted that three comparators he was aware of worked beyond the age of 65, which the Respondent asserted was the mandatory retirement age. One retired in 2012 at the age of 70, two others remained in employment while the Complainant was made to retire.

The Respondent’s position was that the Respondent’s normal retirement age is the day of an employee 65th birthday. The Respondent asserted that the mandatory retirement age was stipulated in the contracts. Admittedly, there was no mandatory retirement age stipulated in the Complainant’s permanent contract of 2011. The Respondent asserted that it was incorporated in the more recent contracts. However, no copy of any other contract was provided which would have shown that the retirement age was communicated to staff. I note that, somewhat surprisingly, the Complainant’s fixed-term contract stated:

“Retirement

If not previously terminated, your employment will end by reason of retirement on reaching the age of 65.”

It is apparent that at the time of the issuing of the fixed-term contract, the Complainant had reached the age of 65 and continued to work until his 66th birthday.

There was no dispute that on 3 April 2023, Mr Regan, Cluster HR Manager emailed the Complainant to arrange a meeting to discuss his retirement. The Complainant then emailed Mr Regan on 14 May 2023 confirming that he wished to carry on working until the age of 66. He said that his last day of work would be 12 January 2025 and that he wished to retire on that day. The Complainant asserted that he was informed that that was what he had to do.

There was no dispute that the Complainant received, albeit he refused to sign, a fixed-term contract of employment for the period from 12 January 2024 to 12 January 2025.

On 15 November 2024, Ms Flynn wrote to the Complainant to arrange a meeting in respect of his retirement. Ms Flynn noted that, as per the Complainant’s contract of employment, his retirement date was 12 January 2024, and it was agreed to extend his employment on a fixed-term basis. As the fixed-term contract was due to conclude and it was proposed to retire the Complainant from his position, she wished to meet with the Complainant to “discuss some plans and options available to you and I can also advise and support you regarding accessing Pre-retirement course, should you avail of same.”

There was no dispute that the Complainant met with the Respondent on or around 4 December 2024 when the Complainant requested an extension of his fixed-term contract. On 20 December 2024, Ms Flynn wrote to the Complainant stating:

“As per your contract of employment, your retirement date was 12th January 2024. After meeting with you last year, it was agreed to issue you with a post-retirement fixed-term contract as per Section 6 of the Employment Equality Acts 1998-2015 with an end date aligned with your entitlement to the State pension at age 66 years of age.

Your one-year fixed term contract is now scheduled to terminate on the 12th of January 2025 at which time you will be retired from working here at Park Inn by Radisson, Shannon.

Having discussed your request with Windward Company senior management, it has been decided not to issue you with a second fixed term contract. This is in line with Company Policy.”

At the hearing on 8 January 2026, the Respondent exhibited a document entitled “Re Policy” by Winward Management, Version 1 – February 2023. The document stipulates in the relevant parts:

“Retirement age

The Company currently has a contractual retirement age of 65 for all Team Members.

We consider it appropriate to have this fixed retirement age to allow us to engage in succession planning and to ensure that Team Members are not required to continue working until they are unable to perform their duties. This is a legitimate business reason, and these aims cannot be reasonably met by other means.”

The document provides for an application to request to work beyond the age of 65 and a one-year post-retirement fixed-term contract with an end date aligned to the State pension. The document further provides for an appeal against the decision not to grant a request to work beyond the contractual retirement age.

The document is unsigned, undated, and it has Windward management logo at the top of the page. Nowhere in the document there is a suggestion that the document, in fact, related to the Respondent i.e. Park Inn by Radisson. There was nothing put forward to show that the Complainant at any stage prior to December 2024, if at all, received a copy of the document. While the Respondent asserted that a copy of this document was provided to the Complainant at a meeting in December 2024, when he made a request to extend his fixed-term contract, the Complainant was unable to confirm whether or not he received the document. There was nothing put forward to suggest that the mandatory retirement age policy was communicated to the Complainant at any stage.

I note that the document refers to a “contractual retirement age”. However, there was no dispute that the Complainant’s contract was silent on the matter.

I further note that while the document refers to an appeal against the decision to refuse a request to work beyond contractual retirement age, Ms Flynn’s letter to the Complainant dated 20 December 2024 does not make any reference to a possibility of an appeal.

The Complainant believed that he could work past 65 or 66 and he refused to sign his fixed-term contract on that basis. He asserted that he did not know that he was mandated to retire at 65 as others in the Respondent’s employment worked past that age.

There was nothing put forward to show that the Respondent’s application of mandatory retirement rules was “consisted and systematic” and “coherent” (para 76 of Seamus Mallon v. The Minister for Justice, Ireland, and the Attorney General [2024] IESC 20).

The Respondent stated that it had no records available regarding one of the comparators, who allegedly retired at the age of 70. However, the Respondent did not dispute that two of its employees as identified by the Complainant worked beyond the age of 65 and left their employment in September 2025 when they decided to return to their native country. Both were 67 years of age at that time.

I agree with the Respondent that this case is on all fours with the case of Pauline Walsh v Bausch Health Ireland. However, I note that the Adjudication Officer’s decision was overturned on appeal in this instance. In EDA2634, the Labour Court concluded that “the enforced retirement of the Complainant on 1 March 2024 amounted to discrimination on the ground of her age.”

In that case, Ms Walsh was due to retire on 1 March 2023 on reaching her 65th birthday. In advance of that date, she requested to work beyond her retirement date. The Respondent approved the request and granted the Complainant a post-retirement fixed-term contract of one year’s duration, which commenced on 1 March 2023 and expired on 1 March 2024. Ms Walsh requested an extension to the one-year fixed term contract in October 2023. This was declined and she was retired on the expiry of a twelve-month post-retirement fixed-term contract on reaching her 66th birthday. Ms Walsh referred her complaint to the WRC on 10 April 2024.

In that case, while there was no express term of employment in Ms Walsh’s contract the Court was satisfied that there was a fixed retirement age in the employment of 65 years of age which has been established through custom and practice. This distinguishes Ms Walsh’s case from the Complainant’s case.

The Court further decided that the respondent did not enforce the mandatory retirement age of 65 years in Ms Walsh’s case. As a result, the Court found that the limited exemption provided at section 34(4) was not applicable to the facts in this case and the respondent could not rely on that provision of the Act.

The Court was satisfied that the respondent has established that a mandatory retirement age was objectively and reasonably justified by a legitimate aim. However, the respondent did not explain to the satisfaction of the Court the rationale for using fixed-term contracts or why they are fixed at 12-months duration.

The Court was not satisfied that the respondent had presented sufficient evidence to demonstrate that the enforced retirement of Ms Walsh was a reasonable or appropriate measure that falls within the ambit of limited exceptions provided in the Act.

In the instant case, there was no cogent evidence put before me to show that the mandatory retirement age was clearly communicated to the Complainant. In Earagail Eisc Teo. v Lett EDA1513 the Labour Court stated the position to be as follows regarding compulsory retirement ages:

“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. … 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 Court further held that

“A term can also be implied in the alternative, and somewhat overlapping, ‘custom and practice’ test adopted in this jurisdiction by Maguire P in O'Reilly v Irish Press [1937] 71 I.L.T.R 194. Here it was held that the practice must be: -

“…so notorious, well-known and acquiesced in that in the absence of agreement in writing it is to be taken as one of the terms of the contract between the parties…it is necessary in order to establish a custom of the kind claimed that it be shown that it was so generally known that anyone concerned should have known of it or easily become aware of it.”

The Labour Court has emphasised that “a crucial consideration in addressing the question of incorporation or implication is whether the employee knew, or ought to have known, of the term contended.”

It was accepted that the Complainant’s contract of employment did not contain any express term as to retirement. There was nothing put forward to show that there was a contractual provision for a retirement at the age of 65; that there was a written retirement policy in the employment; or that a fixed retirement age in the employment of 65 years of age has been established through custom and practice. The Respondent had ample opportunity to inform the Complainant of a requirement that he retires at age 65 or 66 over the currency of his employment. No evidence was adduced of the Complainant having been so informed or having been provided with any document from which such a requirement could have been discerned until the time he was informed that he needed to retire. I cannot accept that an undated, unsigned document that does not contain any reference to the Complainant or to the Respondent can be elevated to the level of a policy that was communicated to staff.

In conclusion, prior to his retirement the Complainant had no contract of employment or conditions of employment specifying a retirement age. Furthermore, there was nothing put before me to show that there was custom or practice within the company of employees retiring at 65. On the contrary, the Respondent confirmed that at least two employees remained in its employment until the age of 67 at the relevant time.

Having regard to the evidence before me, I find that the Respondent had not fixed a retirement age in respect of the Complainant and the Complainant did not have implied notice of such a retirement age. In these circumstances the Respondent cannot avail of section 34(4) of the Act.

As 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 is contingent on employer having fixed such a compulsory retirement age, consequently, the Respondent cannot avail of section 6(3)(c).

Consequently, I find that the Complainant was dismissed from his employment due to his age on the 12 January 2025 when the Respondent refused to extend his period of employment. 

IIn such circumstances it is not necessary to consider the Respondent’s arguments of objective justification for a retirement age of 65 years.

I find that the Complainant has established a prima facie case of discrimination on grounds of his age which the Respondent has failed to rebut.

CA-00071621-001 pursuant to section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

I declare this complaint to be not well founded.

CA-00071621-002 pursuant to section 77 of the Employment Equality Act, 1998

I declare this complaint to be well founded.  I order the Respondent to pay the Complainant €25,000 in compensation for the discriminatory dismissal, an amount equivalent to approximately one year’s net salary of the Complainant at the time of dismissal, which I consider just and equitable in the circumstances. 

Age discrimination -dismissal - retirement