by Jennifer Cashman, Partner, Practice Group Leader of the RDJ LLP Employment Group.
In the eagerly anticipated decision 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.
Employees in the public sector are subject to a statutory mandatory retirement age. There is no statutory mandatory retirement age in the private sector, however the law provides that employers can set a mandatory retirement age provided it can be objectively justified. Mallon provides clarity for employers on how the concept of objective justification is to be applied and, in particular, clarifies that such mandatory limits can 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.
Background to Mallon
Mr Mallon, a practising solicitor, was appointed Revenue sheriff for Cavan and Monaghan in 1987. He was entitled to remain in practice as a solicitor while holding the position of Revenue sheriff and remained in practice at the time of the Supreme Court decision.
Section 12(6)(b) of the Court Officers Act 1945 (hereinafter, “1945 Act”) provides that “the age of retirement from the office of the sheriff shall be seventy years”. There is no provision for the extension or variation of this statutory retirement age.
In July 2020, the Sheriff’s Association made a submission to the Minister for Justice urging the amendment of Section 12(6)(b) so as to increase the retirement age for sheriffs to 72. A number of factors were identified as supporting such an amendment – the retirement age for coroners had recently increased from 70 to 72; the impact of the COVID Pandemic on the earnings of sheriffs, and the fact that sheriffs were not entitled to any pension on retirement were listed. The Sheriff’s Association further submitted that maintaining the existing mandatory retirement age of 70 would be inconsistent with Council Directive 2000/78/EC (hereinafter, “the Employment Equality Directive” or “the Directive”) in that it is objectively discriminatory on the grounds of age and that there are no sufficient and objective grounds justifying it.
On 20 April 2021, the Minister responded declining to increase the retirement age. It was explained the standard compulsory retirement age in the public service has been consolidated “to the greatest extent possible, at the age of 70” by the Public Service Superannuation (Age of Retirement) Act 2018. This position is to be implemented in a consistent manner to protect the integrity of the Government’s policy.
Mr Mallon’s Submissions
Mr Mallon obtained leave to bring judicial review proceedings challenging the lawfulness of the mandatory retirement age provided for in Section 12(6)(b) and seeking the following reliefs:
- An Order of Certiorari quashing the Minister’s decision of 20 April 2021.
- A Declaration that Section 12 of the 1945 Act is incompatible with EU law (the Employment Equality Directive) and thus is void and of no legal effect.
The State’s Submissions
The Minister submitted that the communication of the 20 April 2021 was not a decision amenable to judicial review. It was the 1945 Act that required Mr Mallon’s retirement and any amendment of that Act was a matter for the Oireachtas, rather than the Minister. Secondly, Mr Mallon ought to have pursued his complaint of discrimination to the Workplace Relations Commission rather than by way of judicial review proceedings. Finally, there is ample justification for the mandatory retirement age of 70 and that the position of coroners is materially different to that of sheriffs.
The High Court
The High Court refused the reliefs sought by Mr Mallon.
Phelan J held that the communication of 20 April 2021 was not a decision amenable to certiorari, however, the High Court still had jurisdiction to grant declaratory relief in relation to the compatibility with the requirements of EU law. It was held that while a complaint of discrimination to the WRC could have been maintained, Mr Mallon could elect to pursue the wider relief sought by him and the Court had jurisdiction to determine his application.
Phelan J stated there was “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 or Section 34(4) of the Employment Equality Acts 1998 – 2015. The “core question” was whether Section 12(6)(b) was objectively and reasonably justified by a legitimate aim, and whether the means of achieving that aim are appropriate and necessary. We will discuss the legitimacy of the State’s aims and the proportionality of the measure in detail below when looking at the Supreme Court’s analysis. To summarise, the High Court found that the State had discharged the burden on them of identifying legitimate aims for the mandatory retirement age and concluded the means of achieving these legitimate aims were appropriate and necessary. Phelan J was satisfied a mandatory retirement age of 70 maintains a proper balance between competing interests.
Supreme Court – Core Issues
Mr Mallon was granted leave to appeal to the Supreme Court.
The Supreme Court identified four core issues to be determined on appeal: –
- Is a national measure such as Section 12(6)(b) of the 1945 Act which provides for a mandatory retirement age of 70 compatible with the EU Employment Equality Directive?
- Is there a test of compatibility required in assessing the validity of mandatory retirement ages; and if so, what factors are to be considered, such as age, health or other indicia?
- 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?
- Does the decision of the Minister not to amend the statute (communication of 20 April 2021) constitute a decision amenable to judicial review or is such a decision not justiciable within the court?
The Law
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 Section 34(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.
Supreme Court Analysis
On the preliminary issue of whether the Minister’s communication of the 20 April 2021 was a decision amenable to certiorari, the Supreme Court agreed with the High Court in holding it was not such a decision. The communication was no more than a statement of Government policy and did not alter or affect any of the rights of Mr Mallon. However, the Supreme Court was satisfied that Mr Mallon was entitled to bring these proceedings seeking declaratory relief and was not obliged to pursue a claim for redress before the WRC.
CJEU Jurisprudence
The CJEU has considered the compatibility of mandatory retirement regimes with the Employment Equality Directive on numerous occasions. The Supreme Court identified the legitimate aims that have been recognised by the CJEU in the context of mandatory retirement ages as follows:
i) promoting the employment of younger people and facilitating their entry to the labour market
ii) promoting the access of young people to the professions
iii) establishing an age structure that balances younger and older workers
iv) sharing employment between the generations
v) improving personnel management by enabling efficient planning for departure and recruitment of staff
vi) preventing possible disputes concerning employees’ fitness to work beyond a certain age
vii) avoiding employers having to dismiss employees on the ground that they are no longer capable or working which may be humiliating for the employee
viii) standardising retirement ages for professionals in the public service
The CJEU jurisprudence makes it clear that Member States have a wide margin of discretion not only in terms of choosing the legitimate aims they wish to pursue, but also in terms of defining the means of achieving these legitimate aims.
Is Individual Assessment Required?
Mr Mallon relied on the Donnellan[1] decision to submit that a blanket mandatory retirement age will not be justifiable where individual assessment is possible.
In Donnellan, McKechnie J expressed a view that “[w]here there are a large number of people involved and it would be impractical to test every person then it may be proportional to use some form of age-proxy. Conversely, where there are few people to assess and such could be done relatively easily it would not be proportionate to use blanket proxies so as to determine personal characteristics.”
The Supreme Court noted that the post-Donnellan CJEU jurisprudence does not support the aforementioned position. Rather, to the contrary, the avoidance of individual capacity assessment has been recognised as a legitimate aim capable of justifying a general retirement age due to the scope for disputes such assessment necessarily involves and because of its potential impact on the dignity of employees. The Supreme Court held that the absence of flexibility on a case by case or role by role basis does not, on its own, render a measure disproportionate. It is reasonable to adopt generally applicable mandatory retirement rules without any requirement for individual capacity assessment. Moreover, the “consistent and systematic” and “coherent” application of such mandatory retirement rules is not only permissible but is an important element of the proportionality assessment under the EEA and the Directive.
The key point of clarification from Mallon is this – an employer is not required to justify the application of a general retirement age to an individual employee. Such a requirement would substantially negate the benefit of having such a rule in the first place. In other words, once the aims sought are legitimate, and the measure is proportionate, a mandatory retirement age rule will not offend the prohibition on age discrimination notwithstanding that it does not entail an individual assessment of those subject to the rule. The Supreme Court did note there may be exceptions to this general principle, for example, in the context of lower than normal retirement ages specific to a particular occupation (such as airline pilots) which are sought to be justified by reference to Article 4 of the Directive.
Application to Mr Mallon’s case
(i) Does Section 12(6)(b) have a legitimate aim?
The Supreme Court considered whether Section 12(6)(b) pursues legitimate aims. It was noted that a fixed retirement age enables the State to plan for the recruitment of a replacement sheriff and enables the retiring sheriff to plan for their retirement, including making appropriate arrangements for any staff in their employment. Intergenerational fairness and the creation of an age balance are also legitimate aims. It also provides an opportunity to move toward greater gender parity. The standardisation of retirement ages across the public service is a legitimate aim even in the absence of any other considerations. The Supreme Court confirmed the Trial Judge was correct in finding that the aims identified by the State constituted legitimate aims.
(ii) Is Section 12(6)(b) “necessary and appropriate”?
It was noted that Mr Mallon’s primary complaint was that the mandatory retirement age of 70 for sheriffs is objectively discriminatory and too low when compared to that of Coroners (72).
It was held that it is difficult to identify any circumstances in which a retirement age of 70 might be said to be disproportionate. Such a retirement age is higher than the thresholds for mandatory retirement considered without criticism or condemnation by the CJEU. There is no “right” age. Provided the prescribed age appears reasonably designed to achieve the objectives being pursued, the requirements of Article 6 [section 34(4) EEA] will be satisfied. The Court noted once more that individual assessment is not required by the Directive. It also noted that Section 12(6)(b) can be amended by the Oireachtas at any time. 70 is considerably high than the current “pensionable age” of 66, which is a significant factor. While financial hardship is a significant factor in assessing proportionality, this was not a factor here as Mr Mallon was free to combine his office as a sheriff with continuing practice as a solicitor (or barrister, he is in receipt of the State Contributory Pension, and he remains in practice as a solicitor.
Another consideration is whether the State’s policy of mandatory retirement at 70 has been applied in a “consistent and systemic matter”, and whether any exceptions to the regime give rise to such inconsistency. Collins J noted examples of public sector employees that have lower retirement ages, such as Gardaí and the Defence Forces. He then went on to consider the position of coroners, as raised by Mr Mallon. It was held that the Directive does not require a mandatory retirement regime that applies a uniform retirement age across the public service. The State may provide for a different retirement age to a specific category of public servant where there is a rational and objective basis for doing so. Collins J was satisfied the State had shown a rational basis for the different treatment of sheriffs and coroners given the role of a coroner is highly specialised and it was appropriate to take steps to allow this experience be retained. The Supreme Court agreed with the High Court finding that the mandatory retirement rule for sheriffs is appropriate and necessary for the achievement of the aims identified to justify the rule.
The Supreme Court held the Trial Judge was entitled to conclude Section 12(6)(b) was justified under Article 6 of the Directive [Section 34(4) EEA]. As such, Mr Mallon’s appeal was dismissed and the Order of the High Court refusing all the reliefs sought by Mr Mallon was affirmed.
Commentary
Mallon has provided welcome clarification that an individual assessment is not needed in order for a general mandatory retirement age to be lawful pursuant to the Employment Equality Directive and the EEA. In fact, individual assessments can undermine the consistent and systemic nature of a mandatory retirement age and render it disproportionate.
Post-Donnellan, there have been WRC decisions that placed significant emphasis on assessing the mandatory retirement age on an individual/case by case basis. Where such an individual assessment was lacking, the WRC found the employer was unable to show that the mandatory retirement age was in pursuit of legitimate aim or that those aims were proportionate when measured against the individual characteristics of the employee. Mallon confirms the position that there is no such requirement for a case by case or role by role assessment.
Mallon also confirms there is no “right” age when setting a mandatory retirement age, provided the prescribed age appears reasonably designed to achieve the objectives being pursued. It of course remains possible to provide for longer working beyond a general retirement age for individual employees pursuant to the WRC Code of Practice on Longer Working.
About the author
Jennifer Cashman is Practice Group Leader of the RDJ LLP’s Employment Group. Her focus is on providing strategic business advice and practical, commercial solutions for clients across a range of industry sectors. She advises multinational companies in the technology, pharmaceutical, medical devices and diagnostics sectors and also provides employment advice to Public Authorities, Universities and a number of primary and secondary schools. Jennifer is a member of the Firm’s Cyber and Data Protection Team and advises on a broad range of data management issues including GDPR, data breaches, data subject rights, international data transfers, employee data and compliance training. Jennifer has considerable experience advising clients on the practical application of all aspects of employment law and HR issues.
