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Age Discrimination and Justification in the Public Sector

Business Law, Employment Law - For Employees, Employment Law For Employers Solicitors Dublin

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A recent decision by the Labour Court provides food for thought for both employers and employees on what constitutes an objective justification for age discrimination in the workforce.

The matter in question was an appeal by Louth County Council (the Employer) against a decision (ADJ00010222) of an Adjudication Officer of the Workplace Relations Commission, which held that a former employee, Mary Clarke (the Employee) had been discriminated against under Section 6 of the Employment Equality Act, 1998.

 

Facts

The employee was employed by Louth County Council as a clerical officer in August 2001. Her contract of employment included a clause that she be required to retire from her work at age 65. It was her contention that such a requirement amounted to discrimination on the age ground contrary to Section 8 of the Employment Equality Act. Louth County Council responded that the employee was retired in line with the provisions of her contract of employment and the applicable retirement policy in place at the time, which was set at 65 years of age, being the normal retirement age.

 

Louth County Council (Employer)

Louth County Council submitted that the retirement age was in place to maintain a balanced and diverse age structure, and distribution of work in the workforce. They further contended that the mandatory retirement age facilitated the creation of further opportunities within the labour market, therefore encouraging and facilitating recruitment within the public sector. Louth County Council further contended that the mandatory retirement age actually assisted with the retention of staff through the provision of promotion opportunities, which in a robust labour market, was key to the ability of the Council to recruit and therefore sustain services to the general public.

The Council went on to say that it was required, under its mandate, to deliver services to the public with a limited budget and therefore needed to engage in manpower planning with some degree of certainty as to what its resources and requirements would be at a given date in the future. The Council concluded by stating that the former employee was retired in line with her contract of employment, at the established retirement age of which she was aware, and that such a retirement age had been applied universally across the organisation, which had been objectively set, as required by the applicable legislation.

 

The Applicable Law

Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows:

6(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,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

Section 6(2)(f) of the Employment Equality Act, 1998 provides as follows:

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”),

 

Burden of Proof

Section 85A of the Act provides as follows in relation to the burden of proof which an employee must establish:

85A (1) Where in any proceedings facts are established by or on behalf of an Employee from which it may be presumed that there has been discrimination in relation to him or her, it is for the Employer to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to an Employee.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Employer to prove the contrary.

(4) In this section ‘discrimination’ includes —

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Section 34(4) of the Employment Equality Act, 1998 as amended by Section 10 of the Equality (Miscellaneous Provisions) Act, 2015 provides as follows:34(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.

 

Application

The Labour Court held that Louth County Council had failed to justify applying a retirement age of 65 years to the former employee. It also found that the actions of Louth County Council, in ultimately refusing the employee’s previous requests for an extension to her employment, were neither appropriate nor necessary in seeking to meet the objectives it had raised in its initial submission. The Labour Court held that the employee had established a prima facie case of discrimination and that Louth County Council had failed to discharge the burden of proof on the issue. Accordingly, the Labour Court found that the complaint was well founded and that the Council discriminated against the employee on the grounds of her age.

 

Conclusion

Under European Union Employment Law, 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 vocation of training objectives. Such objectives must be deemed appropriate and necessary.

Decisions such as this from the Labour Court, are a reminder to employers that they will need to be extremely careful, when and if, they are setting retirement ages, based on criteria they see as being objectively justified.

Employers or employees seeking guidance on what constitutes an objective justification for age discrimination in the workforce should seek the guidance of a knowledgeable labor and employment Solicitor.

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