Cómhnall Tuohy

In Thomas Doolin v Eir Business Eircom Limited ADJ-00045261 the complainant, Mr Doolin, brought a complaint to the Workplace Relations Commission (WRC) under the Employment Equality Acts claiming that he was discriminated against on the grounds of age.

The adjudicator, Breiffni O’Neill, found that the complainant established a prima facie case of discrimination when he was dismissed by the respondent on grounds of age which was not rebutted by the respondent.

Facts

The complainant was employed by the respondent as a desktop support agent from September 2019 until his 65th birthday on 1st July 2023 when he was mandatorily retired by the respondent. The complainant claimed that this constituted discrimination on the grounds of age.

The complainant was informed by the respondent in January 2023 of its intention to retire him on 1st July 2023. On 8th February 2023, the complainant made a formal request to work past the age of 65.

A meeting took place on 23rd February with the complainant, his line manager, and a HR generalist. Following this, the complainant was issued with a letter setting out the decision not to extend his retirement age. The letter stated that this decision was not based on any performance issues.

The complainant requested an appeal which took place on 5th April 2023 with the respondent’s HR director who issued a decision on 14th April 2023 refusing the complainant’s appeal and referred to the respondent’s reasons for maintaining a universal retirement age of 65.

Considerations

The adjudicator noted that it was accepted by both parties that there was a mandatory retirement age. The adjudicator was required to consider whether or not there was an objective justification that was reasonably justified by a legitimate aim for having a mandatory retirement age of 65.

Intergenerational fairness

When examining the matter of intergenerational fairness and the associated need to safeguard career pathways while preserving skills and knowledge, in the context of this complaint, the adjudicator noted that the complainant held the position of a desktop support agent.

Given the specific position he occupied, and with due respect to his junior role, the adjudicator was unconvinced that retaining him in employment would have impeded the career progression of any other employee.

Succession planning or the desire to maintain an age balance in the workplace

When examining the respondent’s suggestion that the retirement of the complainant was objectively justified on the grounds of succession planning or the desire to maintain an age balance in the workplace, the adjudicator found that neither its succession plans nor a potential cliff-edge scenario where a substantial number of employees might retire simultaneously, as set out in their retirement policy, would have been affected or arisen if the complainant was retained in his employment.

Health and safety

The adjudicator noted that the impact of health and safety concerns on these roles can vary significantly depending on both their nature and how much time is spent in them. The complainant’s role is exclusively office and desk-based, rendering irrelevant the respondent’s understandable health and safety concerns associated with field-based roles.

Findings

Having regard to the foregoing points, the adjudicator found that the decision of the respondent to refuse to allow the complainant to work beyond 65 was not objectively justified on any of the grounds set out in the respondent’s retirement policy, given his specific role and the nature of it. The adjudicator ordered the respondent to reinstate the complainant to his previous job effective from the imposed retirement date.

There was no award for compensation. However, the reinstatement order means the complainant is entitled to be paid his salary for the time he was out of work between 1 July and 30 November 2023. The decision can be appealed to the Labour Court.

Observations

The decision highlights the relatively high burden employers face in justifying a decision to implement a mandatory retirement age. The WRC’s analysis of the justifications advanced by the employer in this case demonstrates a fact-specific analysis. This means that for an employer to stand over the decision to mandatorily retire an employee, the reasons must be specific to that employee and cannot be generic or non-specific.

• Cómhnall Tuohy is managing partner and head of the litigation team at Kane Tuohy. Jim Gibbons is a trainee solicitor.