Triona Cody

The recent Supreme Court decision in Seamus Mallon v The Minister for Justice, Ireland, and The Attorney General [2024] IESC 20 provides welcome clarity on the law on mandatory retirement ages.

Background

Mr Mallon was a Revenue sheriff and a practicing solicitor. The office of sheriff has a mandatory retirement age of 70 per section 12(6)(b) of the Court Officers Act 1945. Mr Mallon turned 70 in May 2022.

In July 2020, the Sheriffs’ Association, of which Mr Mallon was a member, made a submission to the Minister for Justice seeking an amendment of the relevant section of the 1945 Act to increase the retirement age for sheriffs to 72.

In April 2021, a response issued on behalf of the Minister declined to increase the retirement age on the basis that the Public Service Superannuation (Age of Retirement) Act 2018 consolidated “to the greatest extent possible” the standard compulsory retirement age of 70 in the public service.

High Court judicial review

In July 2021, Mr Mallon obtained leave to bring judicial review proceedings challenging the lawfulness of the mandatory retirement age of 70 provided for in the relevant section of the 1945 Act.

He sought the following reliefs: an order quashing the Minister’s decision in April 2021; and a declaration that the relevant section of the 1945 Act is incompatible with EU Council Directive 200/78/EEC (the Employment Equality Directive).

The Minister objected to this challenge on the basis that Mr Mallon should have pursued a discrimination claim before the Workplace Relations Commission (WRC). The High Court held that a complaint of discrimination to the WRC could have been maintained by Mr Mallon, but he could elect to pursue the reliefs sought in the judicial review proceedings.

The Court considered but ultimately refused Mr Mallon’s application. The Minister’s evidence was accepted, namely, that compulsory retirement was appropriate and necessary to allow for planning, personal and professional dignity, intergenerational fairness, and standardising the retirement age in the public service.

Supreme Court decision

In February 2023, Mr Mallon was granted leave to appeal to the Supreme Court. The Court identified the following core issues in its decision:

1. Is a national measure such as the relevant section of the 1945 Act which provides for a mandatory retirement age of 70 compatible with the Employment Equality Directive?
2. Is there a test of compatibility required in assessing the validity of mandatory retirement ages; and if so what factors are validly to be considered, such as age, health, or other indicia?
3. Can such mandatory limits be set in relation to defined groups based on general probabilities of age, health and competence, as opposed to individual characteristics on an individual assessment?
4. Does the decision of the Minister not to amend the statute, which forms the basis of the application, constitute a decision amenable to judicial review or is such a decision not justiciable within the courts?

The Supreme Court dismissed Mr Mallon’s appeal and found that the relevant section of the 1945 Act establishes a difference in treatment directly based on age within the articles of the Directive. Such a difference in treatment on grounds of age may be justified under Article 6(1) of the Employment Equality Directive if:

1. the difference in treatment is objectively and reasonably justified by a legitimate aim; and
2. the means of achieving that aim are appropriate and necessary.

The Court clarified that the Directive does not require a “case by case or role by role assessment or that such individual assessment must be shown by an employer 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 such rule”.

The Court found that the aims identified by the State “as justifying the application of a mandatory retirement age of 70 in the public service, and the application of that retirement age to sheriffs, clearly constitute legitimate aims” for the purposes of Article 6(1) of the Directive. In addition, standardising “the retirement age at 70 across the public service and public agencies and offices, including the office of sheriff, is one such legitimate objective”.

The Supreme Court also found that a “retirement age of 70 is higher, and in many cases considerably higher, than the thresholds for mandatory retirement that have been considered without criticism or condemnation by the CJEU”.

In relation to the position of sheriffs specifically, the Court found that sheriffs are free to combine their office with continuing to practice as a solicitor (or barrister) and this is a “highly significant factor in assessing the proportionality of requiring their retirement at age 70”. Mr Mallon may continue to practice as a solicitor after his retirement from the office of sheriff (which was not his sole source of income). He is also eligible to receive the State Pension (Contributory) from age 66. No case is made that the requirement for sheriffs to retire at age 70 is likely to give rise to any financial hardship.

Conclusion

This case and the General Scheme of the Employment (Restriction of Certain Mandatory Retirement Ages) Bill 2024 are significant recent legal developments in the area of mandatory retirement ages. We are likely to see the decision of the Supreme Court considered further in litigation taken in the lower courts challenging mandatory retirement ages.

• Triona Cody is a senior associate in Kane Tuohy’s employment and litigation department. Trainee solicitor Jim Gibbons assisted in the writing of this article.